RUKHSAR HUSSAIN alias ROOSI Versus State
GHULAM MUSTAFA MUGHAL, J.--- The captioned appeal has been filed against the judgment dated 13.04.2018, passed by the Shariat Appellate Bench of the High Court in Misc. Application No.113-A of 2018.
2. The facts necessary for disposal of the captioned appeal are that Rukhsar Hussain, appellant herein, stood convicted by the Additional District Court of Criminal Jurisdiction Rawalakot in the offences under sections 320, 337-G, 337-F(i), A.P.C., and sentenced to Diyat amounting to Rs.18,90,299.86/- besides 10 years' simple imprisonment vide judgment dated 15.03.2018. The legality and correctness of the judgment dated 15.03.2018, passed by the Additional District Court of Criminal Jurisdiction Rawalakot was challenged by the appellant, herein, before the Shariat Appellate Bench of the High Court through an appeal. Along with the appeal an application for suspension of the sentence was also filed. The learned Shariat Appellate Bench of the High Court has rejected the application through the impugned judgment dated 13.04.2018.
3. Ch. Zaffar Mehmood, the learned Advocate appearing for the appellant argued that there is no evidence of occurrence and neither any impartial witness has been cited in the challan nor has been examined by the prosecution. The learned Advocate argued that the appellant has availed the remedy of appeal, hence, the legality of the punishment is to be judged finally by the Shariat Appellate Bench of the High Court. The learned Advocate further argued that even amount of Diyat is liable to be recovered in instalments spreading over a period of 3 years and there is no justification in refusing the appellant to be released on bail. The learned Advocate further argued that the punishment of 10 years' simple imprisonment along with sentence of Diyat is no hurdle in acceptance of the application for suspension of the sentence, hence, the impugned judgment is not tenable. The learned Advocate further argued that the appellant remained on bail throughout the trial and has not misused the concession of bail, therefore, he cannot be deprived of from his liberty. He added that in case his appeal is accepted then there would be no compensation for curtailment of his liberty.
4. Conversely, Sardar Karam Dad Khan, the learned Advocate appearing for the other side contended that the appellant has been sentenced maximum punishment in addition to the payment of Diyat, hence, his case is not for the purpose of bail under the provisions contained in section 426, Cr.P.C. The learned Advocate argued that the appeal is not maintainable because legal heirs of the deceased have not been impleaded as party within limitation. The learned Advocate further argued that the appellant will run away if is released on bail and the punishment will remain unimplemented. He lastly submitted that in view of the provisions contained in section 426, Cr.P.C., the appellant is not entitled to be released on bail.
5. We have heard the learned Advocates resenting the parties and have gone through the record of the case. The appellant herein, has been convicted by the trial Court in the above mentioned offences and has been awarded the sentence of Diyat. He is also sentenced to 10 years' simple imprisonment. In case of ultimate conviction, Diyat is to be paid in instalments spreading over a period of three years. Similarly, the question, as to whether, the maximum sentence of imprisonment has rightly been awarded by the trial Court in the circumstances of this case, is also to be seen by the Shariat Appellate Bench of the High Court in the appeal. Although, the appellant, herein, has been sentenced to 10 years' simple imprisonment in addition to the punishment of Diyat and he has lost the initial presumption of innocence after being convicted but considering the overall circumstances of the case and the provisions contained in section 331, A.P.C., which provide the mode of payment of Diyat in equal instalments within a period of 3 years, we are of the view that confinement of the convict-appellant, herein, in jail during pendency of his appeal before the Shariat Appellate Bench of the High Court, will serve no purpose. Moreover, the convict-appellant, herein, has remained on bail during continuation of the proceedings before the trial Court and he has not misused the concession of bail. This Court has already taken the view that where the accused has been sentenced to the payment of Diyat as well as 10 years' simple imprisonment, he can be released on bail while considering the facts of the case. In this regard we may refer to the cases reported as Abdul Ghafoor v. Muhammad Ajaib Khan and another (2007 PCr.LJ 1387) Ali Dost v. The State (2006 PCr.LJ 80) and Muhammad Siddique and 2 others v. The State (2003 YLR 1302). Though in these cases, maximum sentence was served by the convicts, therein, but in the present case the legality and correctness of the punishment is to be judged by the learned Shariat Appellate Bench of the High Court, hence, the curtailment of the liberty of the convict-appellant, herein, till his appeal is decided, is not in the interest of justice.
In view of above, this appeal is accepted and the impugned judgment dated 13.04.2018, passed by the Shariat Appellate Bench of the High Court is hereby set aside while accepting the application filed under section 426, Cr.P.C. The sentence awarded to the convict-appellant, herein, by the Additional District Court of Criminal Jurisdiction Rawalakot vide judgment dated 15.03.2018 is suspended till decision of his appeal before the Shariat Appellate Bench of the High Court. The appellant shall be released forthwith on bail subject to furnishing of bail bond amounting to Rs.19,00,000/- consisting of two sureties who shall be the State subjects having sound financial position and the personal bond of the appellant, herein, in the like amount to the satisfaction of any Magistrate 1st Class Rawalakot.
JK/29/SC(AJ&K) Appeal accepted.