Ghulam Murtaza vs State, etc.
This criminal petition arises from an order passed by the Lahore High Court, Multan Bench, dismissing the petitioner's application for suspension of sentence and release on bail under Section 426 of the Code of Criminal Procedure 1898. The petitioner had been convicted under Section 324 and Section 337-D of the Pakistan Penal Code 1860, and sentenced to rigorous imprisonment along with financial penalties. The core legal question before the Supreme Court was whether the petitioner was entitled to suspension of sentence and bail pending the appeal due to the delayed disposal of his criminal appeal by the High Court beyond the statutory period. The Supreme Court converted the petition into an appeal and allowed it, holding that since the petitioner had served a substantial period in custody without the delay being attributable to him, and his case did not fall within the prohibitory exceptions of Section 426(1-A), he made out a fit case for suspension of sentence. The key principle laid down is that where an appeal of a convicted person is not decided within the statutory period and delay is not attributable to the convict, sentence may be suspended provided the case is not hit by the statutory exceptions.
- Whether a convict is entitled to suspension of sentence under Section 426 of the Code of Criminal Procedure 1898 when the criminal appeal is not decided within the statutory period?
- Does a delay in the disposal of a criminal appeal not attributable to the convict form a valid ground for suspension of sentence?
- What categories of convicts are excluded from the benefit of suspension of sentence under the proviso to sub-section (1-A) of Section 426 of the Code of Criminal Procedure 1898?
- Section 426, Code of Criminal Procedure 1898
- Section 324, Pakistan Penal Code 1860
- Section 337-D, Pakistan Penal Code 1860
- Section 382-B, Code of Criminal Procedure 1898
ORDER
Manzoor Ahmad Malik, J. Petitioner has called in question order dated 28.10.2020, whereby miscellaneous application filed by him under Section 426, Code of Criminal Procedure for suspension of sentence and his release on bail was dismissed by the learned Lahore High Court, Multan Bench Multan.
2. After hearing the learned counsel for the petitioner, learned counsel for Respondent No. 2 and learned Additional Prosecutor General, Punjab at length and perusal of available record, it has been observed by us that the petitioner was convicted and sentenced by the trial Court, vide judgment dated 29.4.2019 as under: "Seven years R.I. under Section 324, PPC, read with Section 337-D, PPC along with fine of Rs.
50,000/- and in default of payment of the same, he was also directed to further undergo three months of Simple Imprisonment. He is also liable to pay Arsh amount 1/3rd of total. Diyat i.e. Rs.
6,85,312/- and imprisonment for five years R.I.
The amount of Arshad was ordered to be given to the injured Faheem in accordance with law.
Benefit of Section 382-B, Cr.P.C. was extended to the petitioner and sentences were ordered to run concurrently."
3. Against his conviction and sentence, the petitioner filed a criminal appeal before the learned High Court. During pendency of criminal appeal he filed a miscellaneous application for suspension of his sentence and release on bail, which was dismissed through the impugned order.
Learned counsel for the petitioner contends that during trial the petitioner was on bail, however, after his conviction and sentence on 29.4.2019, he was lodged in jail; that despite the lapse of more than one year, the criminal appeal of petitioner against his conviction and sentence is still pending and there is no likelihood of its disposal in near future. Learned Additional Prosecutor General and learned counsel for Respondent No. 2 have not controverted the fact that after his conviction and sentence, the petitioner has been in jail since 29.4.2019 and delay in non-disposal of criminal appeal cannot be attributed to the petitioner. In these circumstances particularly when the petitioner has been sentenced, to 7 years R.I. and criminal appeal filed by him against conviction and sentence is still pending adjudication before the learned High Court despite lapse of statutory period, we are of the view that he has made out a case for suspension of his sentence. Case of the petitioner is not hit by the proviso to sub-section (1-A) of Section 426, Code of Criminal Procedure as learned Additional Prosecutor General has not stated that the petitioner is a previously convicted person for an offence punishable with death or imprisonment for life nor in the circumstances of the case, he can be treated as a hardened desperate or dangerous criminal nor is he an accused of an act of terrorism punishable with death or imprisonment for life.
4. For the foregoing, the instant criminal petition is converted into an appeal and the same is hereby allowed. The sentence of appellant Ghulam Murtaza is suspended and he is ordered to be released on bail subject to his furnishing bail bond in the sum of Rs. 100,000/- (Rupees one hundred thousand) with one surety in the like amount, to the satisfaction of learned trial Court. However, the appellant shall remain present before the learned High Court on each and ever date of hearing of his criminal appeal, till its final disposal.