Makhdoom JAVED HASHMI Versus State

IFTIKHAR MUHAMMAD CHAUDHRY, C.J .--- This petition has been filed for review of judgment of this Court dated 9-10-2006, whereby Criminal Petition No.89 of 2005, for leave to appeal for suspension of conviction and sentence of Makhdoom Javed Hashmi (convict-petitioner) was dismissed.

2. Briefly stated, facts of the case are that F.I.R. No.326 of 2003, dated 29-10-2003, was registered against the petitioner at Police Station, Secretariat, Islamabad, at the instance of one Khushi Muhammad; under sections 124-A/468, 469, 471, 500, 505(a) read with sections 131/109, P.P.C. He was arrested on 29-10-2003 and challan was submitted against him after completion of investigation. The Sessions Judge, Islamabad, by judgment, dated 12-4-2004, found him guilty, convicted and sentenced him as follows:--

"(i) 3 years' R.I. with fine of Rs.1,000 or in default to further undergo two months' S.I. for offence under section 124-A, P.P.C.;

(ii) 7 years' R.I. with a fine of Rs.10,000 or in default to further undergo two months' S.I. for the offence under sections 131/109, P.P.C.;

(iii) two years' R.I. with fine of Rs.5,000 or in default to undergo one month's S.I. for offence under section 505(a), P.P.C.;

(iv) Four years' R.I. on each count with a fine of Rs.5,000 on each count failing which to further undergo one month's S.I. on each count for offences under sections 468/471, P.P.C.

(v) One year's R.I. and a fine of Rs.5,000 for offence under section 500, P.P.C. two years' R.I. with a fine of Rs.2,000 or in default to further undergo 15 days' S.I. for an offence under section 469, P.P.C."

All the sentences were directed to run concurrently. The benefit of section 382-B, Cr.P.C. was also extended to him,

3. The petitioner preferred Criminal. Appeal No.166 of-2004 before the Lahore High Court. He also moved Criminal Miscellaneous No.1530/B of 2004 under section 426, Cr.P.C. for suspension of sentence which was declined, vide order, dated 24-2-2006. The Criminal Petition No.89 of 2005, filed by him thereagainst was also dismissed by this. Court vide impugned judgment, dated 9-10-2006. The same is sought to be reviewed through the present petition.

4. The case was heard on 1st August, 2007-when the following order was passed:---

"(2) According to jail authorities, the petitioner was also convicted under sections 131/109, P.P.C. and was sentenced to 7 years' R.I. with fine of Rs.10,000 and in default whereof to undergo further two months' S.I. Benefit of section 382-B, Cr.P.C. was also extended by this Court for the period he remained as under-trial prisoner. The learned counsel further stated that the petitioner was taken into custody on 29th October, 2003 and if -the remissions awarded from time to time were calculated he had already undergone the sentence under the law as well.

(3) On the other hand, Mr. Arshad Ali Chaudhry, learned Advocate-on-Record states that the Government had notified Mr. Munir Ahmed Bhatti, Advocate Supreme Court to argue the case on behalf of the State but he has already obtained adjournment. Therefore, instant case maybe adjourned to a date in the first week of September, 2007.

(4) It was pointed out to learned Advocate-on-Record for the State that. if the calculations as has been made by the office of the Superintendent, Central Jail, Lahore vide letter No.27011 dated 31st July, 2007 are correct then the petitioner had already undergone the sentence except under sections 131/109, P.P.C. If arguments of the learned counsel for petitioner prevail then he seems to have also served out the sentence for the said offence by adding the remissions which may be taken into consideration for .suspension of the sentence. Moreover, after filing of the appeal by the petitioner before the High Court against the judgment of the trial Court dated 12th April, 2004 it has been listed for hearing even for once and there is no likelihood of its hearing in near future. Therefore, the learned Advocate-on-Record for the State has been asked to make alternate arrangements to argue the case.

(5) Both the learned counsel for parties agreed that instant case may be fixed for hearing on 3rd August, 2007.

5. The learned counsel for the petitioner contended that:---

(i) this Court had not taken into consideration that the petitioner had already undergone all the sentences except under sections 131/109, P.P.C. If special remissions granted to the convicts, from time to time, by the President covering total period of approximately one year and eight months and other remissions of over one year under the law were credited to him, the petitioner had already served out the entire sentence of 7 years under sections 131/109, P.P.C.

(ii) For the purpose of taking cognizance of an offence, under section 124-A, P.P.C. necessary sanction from the Government had not been accorded as required by section 196, Cr.P.C. He relied on .the case of Salman Taseer v. Judge, Special Court 1993 SCMR 71. This aspect of the case had escaped the notice of this Court:

(iii) The judgment in the case' of Adnan A. Khawaja v. The State (Criminal Petition No.281 of 2001) had not been taken into consideration wherein it was observed that where a convict had served out almost half of the sentence, his remaining sentence could be suspended depending on the particular facts and circumstances of the case.

(iv) The petitioner had already sought withdrawal of a similar application from the High Court.

(v) The appeal of the petitioner against his conviction and sentence had not been fixed for hearing for the last more than three years.

6. On the other hand, the learned counsel for the State submitted that during the pendency of instant review petition, the petitioner had already moved an application before the High Court for suspension of sentence. The petitioner was not entitled for remissions being a convict for anti-State offences under sections 124-A and 131/109, P.P.C. He further stated that if the sentence of the petitioner was suspended, it would tantamount to disposing of the main appeal pending before the High Court.

7. Ch. Munir Sadiq, the learned Deputy Prosecutor-General, Punjab, stated that since the petitioner had remained incarcerated for a considerable period, he had made out a case for suspension of the sentence. He further stated that supposing the appeal of the petitioner was dismissed by the High Court, the provisions of section 426(3), Cr.P.C. would take care of the period for which his sentence remained suspended which would stand excluded from his sentence.

8. Raja Saeed Akram, the learned A.A.-G., Punjab, stated that in view of the nature of offences involved, the petitioner could not claim remissions as a matter of right.

9. We have heard the learned counsel for the parties at length and have also gone through the relevant record. It is true that while dismissing earlier petition of the petitioner under Article 185(3) of the Constitution, the factum of the period of his sentence already undergone by him had not been taken into consideration. Here, it would be worth mentioning that except the sentence under sections 131/109, P.P.C., the petitioner has already undergone all the other sentences, He has also undergone the major portion of his sentence under sections 131/109, P.P.C. Prima facie, if the remissions granted to other convicts from time to time by the President coupled with the remissions under jail manual and Cr.P.C. for total period of about two years and eight months are counted, he would have almostly undergone the entire sentence.

10. It may also be noted that appeal before the High Court was filed by the petitioner on 24th of April, 2004, but so far not a single hearing had taken place. It is not certain whether the same will be fixed in the foreseeable future. We are also inclined to take a tentative view that, as held in the case of Salman Taseer (supra), for the purpose of taking cognizance of an offence under section 124-A, P.P.C., necessary sanction of the Government was not obtained in terms of section 196, Cr.P.C. However, the Appellate Court shall be at liberty to express a final opinion in the matter.

11. The other argument of Mr. Arshad Ali Chaudhry, Advocate Supreme Court/Advocate-on-Record, for the State that, in case of suspension of sentence, the object of filing the appeal would be defeated, is equally devoid of any substance. A convict who has already undergone almost half of his sentence may seek suspension of sentence in the interest of justice keeping in view the facts and circumstances of a particular case such as Adnan A. Khawaja (supra). It is also mentioned here that if ultimately, the appeal of the petitioner is dismissed by the Appellate Court, the provisions of subsection (3) of section 426, Cr.P.C. would come in operation and the period of suspension of sentence shall stand excluded and he would have to undergo the sentence awarded to him by the Court.

12. For the foregoing reasons, we are of the opinion, that a case for review of judgment has been made out. The impugned judgment, dated 9-10-2006, is reviewed and recalled. As a consequence, the Criminal Petition No.89 of 2005 of the petitioner under Article 185(3) of the Constitution is converted into appeal and is allowed. The order, dated 24-2-2005 passed by the Lahore High Court in Criminal Miscellaneous No.1530/B of 2004 in Criminal Appeal No.166 of 2004 is set aside.

13. The above are the reasons for the short order of today which is to the following effect and is to be lead as integral part of this judgment as well:--

"For the reasons to be recorded separately, this Criminal, Review Petition No.75 of 2006 is allowed. The conviction and sentences of the petitioner in case F.I.R. No.326 of 2003 dated 29-10-2003, registered at Police Station Secretariat, Islamabad, L under sections 124-A/468, 469, 471, 500, 505(a) read with sections 131/109, P.P.C., are suspended during pendency of Criminal Appeal No.166 of 2004 before the Lahore High Court. The petitioner shall be released forthwith, if not required in any other case, subject to his furnishing bail bonds in the sum of Rs.50,000 with P.R. bonds in the like amount to the satisfaction of the Registrar of this Court."

S.A.K./M-88/SC Review accepted.