MUHAMMAD KHAN vs The STATE
This criminal miscellaneous petition was filed under Section 426 of the Code of Criminal Procedure 1898 seeking the suspension of a three-year sentence awarded to the petitioner, Muhammad Khan, following his conviction under Section 337-A(ii) of the Pakistan Penal Code 1860. The core legal question was whether the petitioner was entitled to the suspension of his sentence pending the final adjudication of his appeal, given the relatively short duration of the sentence and the unlikelihood of the appeal being heard in the near future. The Court held that the petitioner was entitled to the suspension of his sentence. The ratio of the decision rests on the principle that where a sentence is short and there is a significant probability that the appellant might complete the entire term of imprisonment before the appeal is decided, the court may exercise its discretion to suspend the sentence and grant bail, particularly when the specific injuries attributed to the accused do not involve the deceased and the prosecution's case against the petitioner is distinguishable from that of his co-accused.
- Can a sentence be suspended under Section 426 of the Code of Criminal Procedure 1898 if the appeal is unlikely to be heard in the near future?
- Is a convict entitled to the suspension of a short sentence if there is a possibility of serving the entire term before the appeal is decided?
- Does the absence of injuries attributed to the accused regarding the deceased influence the court's discretion to suspend a sentence?
- Section 426, Code of Criminal Procedure 1898
- Section 302, Pakistan Penal Code 1860
- Section 337-A(ii), Pakistan Penal Code 1860
- Section 337-A(i), Pakistan Penal Code 1860
- Section 337-L(2), Pakistan Penal Code 1860
- Section 34, Pakistan Penal Code 1860
- Section 382-B, Code of Criminal Procedure 1898
- Section 302(b), Pakistan Penal Code 1860
- Section 324, Pakistan Penal Code 1860
ORDER
'Criminal Miscellaneous No.1 of 2012 ' SYED IFTIKHAR HUSSAIN SHAH, J.---Muhammad Khan, petitioner, has made this petition undtr section 426, Cr.P.C. For suspension of sentence awarded to him vide judgment dated 31-8-2013 passed by the learned Addl. Sessions Judge, Talagang in case F.I.R. No. 92 dated 14-10-2011 registered under sections 302/337-A(ii)/ 337-A(i)/ 337-L(2)/34, P.P.C. At Police Station, Lawa Tehsil Talagang District Chakwal whereby he was convicted under section 337-A(ii) and was sentenced three years' R.I. With Arsh of 5% of Diyat. He was also given the benefit of section 382-B, Cr.P.C.
2. The petitioner along with his co-accused Zahid Iqbal and Shahid Iqbal was tried by the learned Addl. Sessions Judge, Talagang for committing the murder of Muhammad Nawaz and Muhammad Khan for committing the murderous assault on Fateh Khan and injuring him.
3. The case was registered on 14-10-2011 at Police Station, Lawa under sections 302/337-A(ii)/337- A(i)/337-L(2)/ 34, P.P.C. On the complaint of one Muhammad Shahzad.
4. Learned trial Court after recording the evidence and hearing the parties, convicted Zahid Iqbal and Shahid Iqbal under section 302(b), P.P.C. And sentenced them to imprisonment for life with compensation of Rs.
5,00,000 each. However, the present petitioner Muhammad Khan was convicted under section 337- A(ii) P.P.C. And was sentenced to undergo three years' R.I. With Arsh of 5% of Diyat.
5. Learned counsel for the petitioner has contended that the prosecution has failed to establish the guilt of the accused beyond reasonable doubt and he was convicted only under section 337-A(ii)
P.P.C. And the sentence awarded to him is short one and there is no likelihood of hearing of appeal in the near future and he may undergo all the sentences awarded to him till the appeal is fixed for hearing. Therefore he is entitled to the suspension of his sentence.
6. On the other hand, the application is opposed from the complainant side and it is contended that the petitioner was convicted on 31-8-2013. He was charged under section 302 P.P.C. For committing the murder of Muhammad Nawaz and Muhammad Khan under section 324, P.P.C. For committing murderous assault on Fateh Khan. The learned trial Court had already taken the lenient view while awarding the sentence to the petitioner only under section 337-A(ii), P.P.C. Therefore, he is not entitled to the suspension of sentence at this early stage.
7. I have heard the learned counsel for the petitioner, learned ADPP for the State and the learned counsel for the complainant and have also perused the available record.
8. Although the petitioner was charged under section 302/34 P.P.C. And section 337-A(ii) P.P.C. But he has been convicted by the learned trial court under section 337-A(ii) P.P.C. And has been sentenced to three years' R.I. With Arsh of 5 % of Diyat.
9. The sentence is short one but the co-accused has been convicted for life imprisonment and the hearing of the appeal in the near future is not insight and the possibility of serving the whole sentence by the appellant during the pendency of appeal cannot be ruled out.
10. The facts of case-law relied upon by the learned counsel for the complainant cited as Manzoor Ahmed v. Fazal Ahmed and 3 others (2013 SCM R 1403) are not directly applicable to the facts and circumstances of the present case. In the aforesaid case, the accused has caused injuries at the person of the deceased but in this case no injury has been attributed to the deceased by the present peiitioner. He had given a danda blow on the head of Fateh Muhammad who did not appear in the Court as witness.
11. For the foregoing reasons and relying on Abdul Hameed v. Muhammad Abdullah (1999 SCM R 2589) and Nazeer Ali alias Nazeer v. The State (2011 YLR 403), the instant petition is hereby allowed and the sentence imposed by the petitioner is hereby suspended till the final decision of the appeal. In the meanwhile he is admitted to bail subject to his furnishing bail bonds in the sum of Rs.200,000 with two sureties in the like amount to the satisfaction of the Deputy Registrar (J) of this Court.