MUHAMMAD AKRAM Versus State
This petition was filed under Section 426(2-B) of the Code of Criminal Procedure 1898, seeking suspension of sentence and release on bail pending an appeal before the Supreme Court. The petitioner had been convicted by the trial court under Section 302(b) of the Pakistan Penal Code 1860, but the High Court, on appeal, set aside that conviction and instead convicted him under Section 337-F(v) of the Pakistan Penal Code 1860. Both the petitioner and the complainant were granted leave to appeal by the Supreme Court. The core legal question was whether the High Court possessed the jurisdiction to suspend the sentence and grant bail under Section 426(2-B) of the Code of Criminal Procedure 1898 while the matter was pending before the Supreme Court. The Court held that the grant of leave to appeal by the Supreme Court did not automatically restore the trial court's judgment or set aside the High Court's judgment. Finding the petitioner, aged over 60 and infirm, eligible for relief, the Court suspended the sentence and granted bail pending the final disposal of the appeal by the Supreme Court.
- Does the High Court have jurisdiction under Section 426(2-B) of the Code of Criminal Procedure 1898 to grant bail when leave to appeal has been granted by the Supreme Court?
- Does the grant of leave to appeal by the Supreme Court automatically restore the trial court's judgment or set aside the High Court's appellate judgment?
- Section 426(2-B), Code of Criminal Procedure 1898
- Section 302(b), Pakistan Penal Code 1860
- Section 337-F(i), Pakistan Penal Code 1860
- Section 337-F(vi), Pakistan Penal Code 1860
- Section 337-F(v), Pakistan Penal Code 1860
- Section 34, Pakistan Penal Code 1860
ORDER
SYED MUHAMMAD KAZIM RAZA SHAMSI, J.--- By filing this petition under section 426(2-B) Cr.P.C. the petitioner prays for the suspension of the sentence and his release on bail on the ground that against judgment dated 2-5-2013 handed down by this Court, the apex Court had graciously granted leave to appeal to consider "whether the learned High Court fell in error in the facts and circumstances of this case to hold that the petitioner/convict Muhammad Akram could not be saddled with the charge of section 302(b), P.P.C. since he was attributed an injury on the non-vital part of the body of Muhammad Arif deceased, whether petitioner/convict shared the common intention as he was ex-facie not connected with the motive part of the prosecution story and whether the learned High Court kept in view the principles of safe administration of justice laid down by this Court?"
2. The history of the case is that the petitioner was tried by the learned Additional Sessions Judge, Kharian in case F.I.R. No.178, dated 30-4-2009 registered at Police Station Saddar Kharian, under sections 302, 337-F(i), 337-F(vi) and 34, P.P.C. and convicted the petitioner under section 302(b), P.P.C. and sentenced to imprisonment for life. On appeal, bearing Crl. Appeal No.2183 of 2011, this Court vide judgment dated 2-5-2013 had set aside the conviction of the petitioner under section 302(b), P.P.C. and acquitted him but convicted under section 337-F(v), P.P.C. and sentenced to five years R.I. with the a direction to pay Rs.200,000/- as Daman to the legal heirs of the deceased.
3. The petitioner Muhammad Akram and co-convict Muhammad Ashraf filed two Crl. Petition No.591-L of 2013 and Crl. Petition No.562-L of 2013 respectively in which the apex Court had granted leave to appeal
4. During the course of arguments, learned counsel for the complainant has pointed out that leave to appeal has also been granted by the apex Court in the petition filed by the complainant but learned counsel has not produced any such order of the august Court in this respect. Learned counsel for the petitioner while relying upon the case of Muhammad Ashraf v. The State (2013 PCr.LJ 403) submitted that this Court enjoys jurisdiction under section 426(2-B), Cr.P.C. to admit a convict to bail in case the Apex Court had granted leave to appeal. Learned counsel for the complainant has controverted the argument with the submission that leave to appeal has also been granted to the complainant meaning thereby that the judgment rendered by this Court has been set aside and the judgment handed down by the learned trial Court has been maintained.
5 After having heard the learned counsel for the parties, this Court is of the view that the submission made by the learned counsel for respondent has no force for the simple reason that the apex Court had granted leave to appeal to the parties to reappraise the evidence and to determine the questions as set down in the leave granting order, therefore, at this stage, it would be pre-mature to say that the judgment of the learned trial Court has been restored and judgment of this Court has been set aside, by apex Court. Be that as it may, without commenting upon the merits of the case, keeping in view the fact that the august Supreme Court had granted leave to appeal to both parties; and that the petitioner is having the age of more than 60 years and seems to be an infirm person, who is behind the bars from the date of judgment of the learned trial Court i.e. 27-10-2011, is entitled to the relief prayed for.
6. In these circumstances this Court is inclined to allow this petition, consequently the sentence of the petitioner is suspended pending disposal of Crl. Appeal by the apex Court and he is admitted to bail on his furnishing of bail bonds in the sum of Rs.100,000/- with one surety in the like amount to the satisfaction of Deputy Registrar (Judl.) of this Court.
HBT/M-273/L Sentence suspended