MUHAMMAD SAFDAR vs STATE and another
The petitioner filed an application under Section 426(2-B), Code of Criminal Procedure 1898 seeking suspension of his sentence and release on bail pending his appeal before the Supreme Court of Pakistan, following the grant of leave to appeal against his conviction under Section 302(b) of the Pakistan Penal Code 1860 and subsequent alteration of the death sentence to life imprisonment by the High Court. The core legal question was whether the sentence of a convicted person should be suspended and bail granted when leave to appeal has been granted by the apex court, the petitioner has undergone more than half of his sentence including remissions, and the appeal is unlikely to be heard in the near future. The court held that given the leave granting order, the statutory period already spent in incarceration, and the delay in disposal of the appeal, the sentence should be suspended. The key principle laid down is that post-conviction bail under Section 426(2-B), Cr.P.C. may be granted when a strong case for potential acquittal is shown through a leave-granting order and the applicant has served a substantial portion of the sentence without immediate prospect of the appeal's hearing.
- Can a sentence be suspended under Section 426(2-B), Code of Criminal Procedure 1898 after leave to appeal has been granted by the Supreme Court?
- Whether prolonged incarceration without the likelihood of a speedy hearing of an appeal constitutes a valid ground for suspension of sentence?
- Is bail warranted when the Supreme Court's leave-granting order notes substantial grounds requiring reappraisal of evidence?
- Section 302, Pakistan Penal Code 1860
- Section 324, Pakistan Penal Code 1860
- Section 365, Pakistan Penal Code 1860
- Section 337-F(iii), Pakistan Penal Code 1860
- Section 337-L(ii), Pakistan Penal Code 1860
- Section 148, Pakistan Penal Code 1860
- Section 149, Pakistan Penal Code 1860
- Section 544-A, Code of Criminal Procedure 1898
- Section 382-B, Code of Criminal Procedure 1898
- Section 161, Code of Criminal Procedure 1898
- Section 426(2-B), Code of Criminal Procedure 1898
ORDER
The petitioner was convicted by the learned Additional Sessions Judge, Multan vide judgment dated 08.06.200.6 in case FIR No, 397/2001 dated 22.10.2001 under Section 302/324/365/337F(iii)/337-L(ii)/148/149, PPC registered at PS Mumtazabad, Multan and was sentenced as follows: (i). Under Section 302 (b), PPC. Death Rs,50,000/- as compensation under Section 544 (A), Cr.P.C.
(ii). Under Section 365 readwith Section 148/149, PPC 5 years R.I. And a fine of Rs,5,000/- in default S.I. For 3-months.
(iii). Under Section 337-L (ii), PPC 2-years R.I. And Rs,5000/as Daman (iv). Under Section 33 7-F (iii), PPC 3-years R.I. As Tazir and Daman of Rs, 100,000/- ' All sentences shall run concurrently and benefit of Section 382(b), Cr.P.C. Was also extended to the petitioner.
2. On appeal the learned Division Bench of this Court vide order dated 11.11.2010 disposed of Crl.
Appeal No. 315/2006 and M.R. No. 705/2006 filed by the petitioner and altered the death sentence of the petitioner into life imprisonment whereas he was acquitted of the remaining charges.
3. The petitioner preferred Jail Appeal No. 326/2011 and Crl. Petitions No. 679 & 680.Of 2010 before the Apex Court of Pakistan and vide order dated 23.01.2014 the Apex Court was pleased to observe as under: It has inter alia been contended by the learned counsel for the petitioner that Haji Muhammad Yaqoob (PW-9) was a pivotal figure in the occurrence in issue and he had applied before the local police for registration of a criminal case against the present accused party and in his application he had given a version of the incident which was totally different from the version of the occurrence mentioned in the FIR lodged by Maqsood Ahmed (PW8); the said Haji Muhammad Yaqoob (PW-9) had got his statement recorded before the police under Section 161, Cr.P.C. And in that statement he had advanced a version of the incident different from the FIR and had exonerated some of the accused persons attributed fire-arm injuries to the deceased in the FIR; the impugned judgment passed by the Lahore High Court, Multan Bench, Multan shows that the eye-witnesses produced before the learned trial Court had been changing their stance at different stages of the case; two co-accused of the petitioner attributed effective and fatal firing at Liaquat Ali deceased had been acquitted by the learned trial Court and the same evidence could not have been safely relied upon against the present petitioner; the motive set up by the prosecution had been discarded by the Lahore High Court, Multan Bench; and, therefore, the prosecution had failed to prove its case against the petitioner beyond reasonable doubt.
2. The contentions of the learned counsel for the petitioner noted above require reappraisal of the evidence so as to secure the interests of justice. This petition is, therefore, allowed and leave to appeal is granted for the purpose.
4. It in this background that the petitioner has approaches this Court under Section 426 (2-B), Cr.P.C. For suspension of sentence awarded to him by the learned trial Court and upheld by this Court maintaining that there is likelihood of the acquittal of the petitioner in the long run and simultaneously, there is no likelihood of his appeal being heard and decided in the near future by the Apex Court, hence, the sentence awarded to him be suspended.
5. Learned counsel for the complainant assisted by the learned Law Officer vehemently opposed the submissions made by the learned counsel for the petitioner.
6. We have heard learned counsel for the parties and perused the record.
7. Keeping in view the leave granting order of the Apex Court, as reproduced above, and also the fact that the petitioner has remained behind the bars since 07.11.2001 and after getting benefit of- Section 382-B, Cr.P.C. And remission earned by him from time to time has undergone more than half sentence and there is no likelihood of his appeal being disposed of in the near future, therefore, sentence awarded to the petitioner is hereby suspended and he is ordered to be released on bail subject to his furnishing bail bonds in the sum of Rs.200,000/- (Rupees two lac only) with one surety in the like amount to the satisfaction of the Deputy Registrar (Judl.) of this Court. However, he is directed to appear before the Apex Court on each and every date of hearing till the final decision of the appeal.
(A.S.) .