MUHAMMAD ASLAM vs YAQOOB AND ANOTHER
This matter involves petitions for leave to appeal challenging the orders of the High Court suspending the sentences of Fazal Ellahi and Yaqoob under section 426 of the Code of Criminal Procedure 1898. Both respondents were convicted under sections 302 and 307 read with section 34 of the Pakistan Penal Code 1860, receiving sentences of life imprisonment and rigorous imprisonment with fines. The High Court suspended their sentences upon forming a tentative view from the judgment that the specific part attributed to one respondent was not established and that the question of vicarious liability required consideration, placing both respondents on par. The core legal question was whether the High Court acted injudiciously in suspending the sentences based on a tentative opinion formed from the trial judgment. The Supreme Court held that the High Court acted within its discretion in forming a tentative opinion on the face of the judgment, and the suspension orders were not injudicious. The petitions were accordingly dismissed, establishing that an appellate court may exercise its discretion to suspend a sentence under section 426 Cr.P.C. by forming a tentative assessment of the merits of the case from the trial judgment.
- Can an appellate court suspend a sentence under Section 426 of the Code of Criminal Procedure 1898 based on a tentative opinion formed from the trial judgment?
- Whether the High Court's exercise of discretion in suspending a sentence can be interfered with when it is based on a tentative assessment of the merits?
- Does parity in the case of co-accused justify the suspension of sentence for one based on the reasoning applied to another?
- Section 426, Code of Criminal Procedure 1898
- Section 302, Pakistan Penal Code 1860
- Section 307, Pakistan Penal Code 1860
- Section 34, Pakistan Penal Code 1860
ORDER
' MUHAMMAD HALEEM, ACTG. C. J. - This order will govern Cr. P. S. L. A. No, 56-R of 1983 and Cr. P. S. L.
A. No, 63-R of 1983, by which the High Court by separate orders suspended the sentence of Fazal Ellahi and Yaqoob under section 426, Cr. P. C. Both of them were convicted under sections 302 and 307 read with section 34, P. P. C. On the first count they were sentenced to life imprisonment and fine, and on the second count to five years' R. I. And fine in the same amount.
2. While suspending the sentence of Fazal Ellahi, a Division Bench of the High Court upon a perusal of the judgment prima facie held that the part attributed to him was not established as no sharp- edged injuries were noticed on Ashraf. The Division Bench further held that as the incident took place outside the Heveli of Faiz Bakhsh, who has since been acquitted where Fazal Ellahi also resided, the question for consideration would also be that he had "run out in defence of one or more of his brothers". In other words, impliedly, the Court was of the tentative opinion that it was not a case of vicarious liability. As the case of Yaqoob was at par with Fazal Ellahi, his sentence was also suspended on, this ground.
3. The petitioner has challenged the legality of the orders, but we fail to see any substance in it as the Court can, if it appears on the face of the judgment form a tentative opinion such as the one in the present case. It is an exercise of discretion and to all intents and purposes the opinion is tentative. Accordingly, it cannot be said to be injudicious. The petitions fail and are hereby dismissed.
Cited by 2 cases
- AHMAD DIN Versus MUHAMMAD TAZEEM 2004 PCRLJ 956
- Dr. AFTAB AHMED and anothers vs THE STATE 1996 PLD Karachi 149