MUHAMMAD RIAZ Versus State

ORDER

Criminal Miscellaneous No. 1-M of 2021

MUHAMMAD AMEER BHATTI, C.J .---Petitioner Muhammad Riaz through the instant petition has sought suspension of his sentence and admitting him to bail pending disposal of the above-mentioned appeal.

2. The learned trial Court awarded 04-years' sentence, which was challenged through appeal and the complainant side also filed revision petition for enhancement of aforesaid sentence, however, the learned appellate Court while dismissing the appeal of the petitioner accepted the revision petition of the respondent-complainant whereas in the said revision petition no notice was ever issued to the petitioner, as a result whereof his sentence was enhanced upto 07-years.

3. The contention of the learned counsel for the petitioner is that the enhancement of sentence was made by the learned revisional Court without issuing notice to the petitioner.

It is noticed that section 439(2), Cr.P.C. makes it obligatory on the revisional Court to issue notice to the petitioner. The said provision of law reads as under:-

"(2) No order under this section shall be made to the prejudice of the accused unless he has had an opportunity of being heard either personally or by pleader in his own defence."

Without issuing notice to the petitioner as to enhance his sentence enabling him to advance arguments, enhancement from four years to seven years, prima facie, makes the judgment impugned unsustainable in the eye of law as this glaring illegality is floating on the surface reflecting from the order sheet attached with the revision petition. The learned Deputy Prosecutor General frankly conceded this deficiency-illegality committed by the learned revisional Court.

4. In view of the above, without taking into consideration the enhanced sentence by the learned revisional Court being contrary to the mandatory provision of law, I am inclined to hold that the sentence of the petitioner awarded by the learned trial Court falls within the parameters of 'short sentence' as per dicta held in Abdul Hameed v. Muhammad Abdullah and others (1999 SCMR 2589), Mahmood Iqbal v. The State (2008 MLD 1376 (Lahore-DB), Rizwan and another v. Federation of Pakistan through Secretary Ministry and 2 others (2013 YLR 520 (Sindh-DB) and Ilyas alias Billu v. The State (2008 MLD 312 (Lahore-DB). It is held in the latter judgment as under:-

"We have heard learned counsel for the parties and perused the record. The petitioner was sentenced only for five years, which is a short sentence. Reliance is placed on Nazeer Ahmad and 2 others v. The State (2005 PCr.LJ 657 Karachi) and Abdul Hameed v. Muhammad Abdullah and others (1999 SCMR 2589)."

In 2013 YLR 520, referred to supra, it was held that,

"Keeping in view dicta laid down in series of decisions, which falls within limitations of "doctrine of stare decisis" the subject-matter pertains same criteria, accused were convicted for five years, one year has been passed, there is no likelihood of regular hearing of appeal in near future, the sentence is short, if the petitioners will not be released on bail during pendency of appeal, there is every apprehension that before decision they would have undergone their entire sentence thus this is a fit case to suspend the sentence and release them on bail, however petitioners are directed to be present on hearings of this appeal."

Therefore, the instant petition is accepted and the sentence of the petitioner is suspended and is released on bail subject to his furnishing bail bond in the sum of Rs.20,000/- (Rupees twenty thousand only) with one surety in the like amount to the satisfaction of the Deputy Registrar (Judicial) of this Court.

KMZ/M-140/Lah. Order accordingly.