ZIA MOHYUDDIN vs STATE
The petitioner, convicted in six separate cases under Section 409 of the Pakistan Penal Code 1860, sought leave to appeal against the High Court's refusal to suspend his sentences. The petitioner argued that the sentences were excessively harsh, noting that the trial court itself expressed constraints due to the mandatory minimum sentence prescribed by law, despite the misappropriated amount being returned shortly after the occurrence. The petitioner also challenged the vires of the legislation mandating such minimum sentences. The Supreme Court examined whether the High Court's refusal to suspend the sentence was justified. The Court held that where the legislature has explicitly prescribed a minimum sentence for a proven offence, the trial court is bound by that mandate. Furthermore, given the legislative scheme prioritizing the speedy disposal of such cases, the Supreme Court found no error in the High Court's exercise of discretion in refusing to suspend the sentence pending appeal. Consequently, the Court refused leave to appeal, affirming that the statutory minimum sentence must be respected and that the appellate process should proceed without interim suspension.
- Can a court suspend a sentence where the legislature has prescribed a mandatory minimum term of imprisonment?
- Is the return of misappropriated funds a sufficient ground to suspend a sentence imposed under Section 409 of the Pakistan Penal Code 1860?
- Does a trial court have the discretion to impose a sentence lower than the statutory minimum prescribed by law?
- Section 409, Pakistan Penal Code 1860
ORDER
' SHAFIUR RAHMAN, J.--The petitioner was prosecuted separately in six cases under section 409, P.P.C. Before the Special Court (Offences in Banks) Lahore, and convicted and sentenced to seven years' R.I. In each. He filed appeals against the conviction and sentence and prayed for the suspension of the sentence which request was refused by the High Court observing as hereunder:- - "One thing is clear that the involvement of the petitioner is fully evident from the record of the cases. He stands convicted in six different cases and has been awarded 7 years' R.I. In each case.
The fact that the misappropriated amount was paid back by the petitioner/accused within two months of the occurrence, would not advance his case any further. In these circumstances we are not inclined to suspend the sentence of the petitioner at this stage."
' The petitioner seeks leave to appeal against these orders of the High Court dated 17-7-1989 whereby suspension of the sentence was refused.
2. Muhammad Latif Khan Khosa, Advocate the learned counsel for the petitioner has taken us through the judgment of the Special Court, particularly the portion reproduced hereunder, in order to highlight the extreme harshness and oppressiveness of the sentence with a view to seek its mitigation by suspension pending hearing of the appeals:-- "The misappropriated amount involved in this case is meager one It was, paid hack by the accused within two months of the occurrence. In my view, this case did not justify heavy sentence of imprisonment to the accused. I was constrained to award 7 years R.I. Because the said sentence was the minimum which could be awarded under section 409, P.P.C. The accused may, therefore, approach the Government for remission of sentence of imprisonment, if so advised."
3. The learned counsel has also submitted before us that in the appeals he has challenged the vires of the law which prescribed the minimum sentence and so tied the hands of the Court holding the trial and adjudicating in the matter.
4. We find that the legislative intent has been made clear by prescribing the minimum sentence for an offence which stood proved before the trial Court against the petitioner. The scheme of the law itself being of speedy disposal' of such matters, we are sure that the appeals themselves would not take long period to be finally disposed of The High Court justifiably exercised its discretion in refusing the suspension of the sentence and there is no case made out for our interfering with it.
Leave to appeal is, therefore, refused.