GHULAM ABBAS Versus STATE

ORDER

Ghulam Abbas and Yar Muhammad sons of Palia appellants‑petitioners were tried by the learned Additional Sessions Judge D.G. Khan in a case registered vide F.I.R. No.138 dated 17‑4‑1993 under section 320/34, P.P.C. (for the murder of Talib Hussain) who vide his judgment dated 31‑8‑1994 convicted both of the them under section 302(b)/34, P.P.C. and sentenced them to life imprisonment. They were also directed to pay Rs.20,000 each as compensation to the legal heirs of the deceased. Benefit of section 382‑B, Cr.P.C. was also extended. They have challenged the conviction and sentences in appeal and have also moved an application under section 426(1-A); Cr.P.C. for the suspension of their sentence on statutory ground.

2. Learned counsel for the appellants‑petitioners contends that if the appeal is not decided within a period of two years from the date of conviction then the convict has a statutory right to seek suspension of sentence. He relied of Khuda Bux v. The State (1994' PCr.LJ 2359), Zamurred Khan and 2 others v. The State (1994 PCr.LJ 577), Tahir Hussain Shah v. The State (1994 PCr.LJ 916), Mst. Zohran and another v. The State (1994 PCr.LJ 917), Muhammad Yaqoob and others v. The State (1991 SCMR 1459) and Rana Muhammad Ashiq and 6 others v. The State (1996 SCMR 1559) to contend that in absence of tenable reasons the right of suspension of sentence accrued in terms of the afore referred provision cannot be denied to a convict.

3. None has appeared on behalf of the State. Learned counsel for the complainant has nothing much to say on merits but prayed that the appeal may be fixed for hearing instead of suspending the sentence.

4. I have heard learned counsel for the parties and have also gone through the precedent case‑law on the subject.

5. On being asked by this Court, the office reported that appeals pertaining to the year 1985 were being fixed and that the instant appeal relates to the year 1994 as such there is no likelihood of its fixation in the near future.

The right of suspension of sentence on statutory ground is not a right which becomes automatically available to a convict if the appeal is not decided within a period stipulated in section 426, Cr.P.C. Grant or refusal of suspension of sentence is a discretion of the Court but the said discretion has to be exercised judicially and the afore‑referred provision mandates that the Court may refuse to suspend the sentence for reasons recorded. In the instant case, however, no reason has been furnished either by the State or by the learned counsel for the complainant to refuse the relief sought. Merely fixing the appeal instead of disposing of an application for suspension of sentence has not been found to be a valid ground to refuse bail. In Rana Muhammad Ashiq and 6 others v. The State (199(, SCMR 1559) precisely the same question came up for consideration before the Hon'ble Supreme Court as High Court had declined to suspend the sentence and had instead fixed the main appeal. Disagreeing with the order of the High Court, the august Court suspended the sentence and held that "in the instant case the High Court indeed has not giving any reason".

In Muhammad Yaqoob and others v. The State (1991 SCMR 1459) the sentence was suspended and it was held as under:‑

"Merely stating that it is not a proper case for enlarging the petitioners on bail can hardly constitute a good reason justifying for withholding a benefit which the Code of Criminal Procedure has expressly given to them. "

In Tahir Hussain Shah v. The State (1994 PCrLJ 916) a Division Bench of this Court had suspended the sentence as the appeal had not been decided within a period stipulated in law.

6. In view of the above and respectfully following the precedent case‑law I am inclined to suspend the sentence of Ghulam Abbas and Yar Muhammad appellants‑petitioners provided they furnish bail bonds in the sum of Rs.1,00,000 each with two sureties each in the like amount to the satisfaction of (lie District Magistrate D.G. Khan.

H.B.T./G‑46/L Petition accepted.