PLJ 2024 Cr.C. (Note) 81
[Lahore High Court, Multan Bench]
Present: Shakil Ahmad, J.
RAFIQ KHAN--Appellant
versus
STATE and another--Respondents
Crl. A. No. 786 of 2018, decided on 18.4.2022.
Criminal Procedure Code, 1898 (V of 1898)--
----S. 426(1-A)--Pakistan Penal Code, (XLV of 1860), Ss. 302(b)/324/ 337F(v)--Suspension of sentence--Statutory ground--Delay in decision of main appeal was not occasioned by an act or omission on the part of the petitioner/convict or any other person acting on his behalf--Where case of a convict is not covered under the exceptions as enumerated u/S. 426 (1-A) of Cr.P.C., he becomes entitled to be released on bail not as a matter of grace but as a matter of right--This petition is allowed and the sentence of the petitioner/convict is suspended. [Para 3 & 4] A, B & C
2012 PCr.LJ 21 ref.
Rana Mehraj Khalid, Advocate for Petitioner/Appellant.
Mr. Ansar Yasin, Deputy Prosecutor General for State.
Khawaja Qaisar Butt, Advocate for Complainant.
Date of hearing: 18.4.2022.
Order
Crl. Misc. No. 01 of 2021.
By filing this petition under Section 426, Cr.P.C. petitioner/ convict seeks suspension of execution of sentence awarded to him by learned Additional Sessions Judge, Multan, through judgment dated 26.06.2018, whereby petitioner was convicted and sentenced as under:--
(i) Convicted under Section 302(b), PPC and sentenced to undergo Imprisonment for Life as Tazir and was also directed to pay Rs. 200,000/-as compensation to legal heirs of deceased Waseem Javed under Section 544-A of Cr.P.C. In case of non-payment of amount of compensation, to further undergo six months S.I.
(ii) Convicted under Section 324, PPC and sentenced to undergo Rigorous Imprisonment for seven years and fine of Rs. 50,000/-and in case of default, he shall further undergo for six months.
(iii) Convicted under Section 337-F(v), PPC and sentenced to undergo five years Rigorous Imprisonment as Tazir and was also liable to pay ‘Daman’ of Rs. 50,000/-payable to Ikhlaq Ahmad injured PW.
All sentences shall run concurrently. Benefit of Section 382-B of Cr.P.C. was also extended to the petitioner.
2. Arguments heard. Record perused.
3. Without dilating upon the merits of the instant case, lest it may prejudice the case of either of the sides while deciding the main appeal, it may be observed that Section 426(1-A)(c) of Cr.P.C. provides concession to a convict whose appeal could not be decided within a statutory period of two years, to be released on bail till the final decision of the main appeal. Learned counsel for petitioner/convict, confined his arguments merely on statutory ground as enshrined under the provisions of Section 426(1-A)(c) of Cr.P.C. Same is reproduced hereunder for ready reference:
Section 426 (1-A) of Cr.P.C. “An Appellate Court shall, except where it is of opinion that the delay in the decision of appeal has been occasioned by an act or omission of the appellant or any other person acting on his behalf, order a convicted person to be released on bail who has been sentenced:-
a. …………..
b. …………..
c. to imprisonment for life or imprisonment exceeding seven years and whose appeal has not been decided within a period of two years of his conviction.
Provided that the provisions of the foregoing paragraphs shall not apply to a previously convicted offender for an offence punishable with death or imprisonment for life or to a person who, in the opinion of Appellate Court, is a hardened desperate or dangerous criminal or is accused of an act of terrorism punishable with death or imprisonment for life.
(emphasis supplied)
Plain reading of above hinted provisions of law vividly suggests that right of a convict seeking suspension of his sentence on statutory ground can only be denied where his case is either covered under the provisions of subsection (1-A) of Section 426, Cr.P.C. or to its proviso. It may further be observed that Statutory right of a convict to be released on bail under Section 426 of Cr.P.C. is subject to two exceptions, one embodied in subsection (1-A) of Section 426 of Cr.P.C. and second in its proviso. Nothing, however, is available on the record to even remotely suggest that delay in the decision of main appeal was occasioned by an act or omission on the part of petitioner/convict or any other person acting on his behalf. Main appeal was filed on 19.07.2018. Statutory period as contemplated under the provisions of Section 426 (1A) (c) of Cr.P.C. has already lapsed on 18.07.2020. Main appeal could not be decided for a period of more than 03 years & 09 months and there is no likelihood of its decision in near future. Learned Law Officer remained unable to point out any material whatsoever suggesting that petitioner is a hardened, desperate or dangerous criminal or that he remained accused of an act of terrorism punishable with death or imprisonment for life. Case of petitioner/convict, therefore, is not covered under subsection (1-A) of Section 426 of Cr.P.C. or to its proviso. Where case of a convict is not covered under the exceptions as enumerated under Section 426 (1-A) of Cr.P.C., he becomes entitled to be released on bail not as a matter of grace but as a matter of right. Reliance in this regard may safely be placed on recently pronounced celebrated judginent of august Supreme Court of Pakistan in case “Nadeem Samson vs. The State, etc” (Crl.P.No. 1016-L/2021) and case titled “Abdul Ghaffar alias Kalo and another vs. The State and another” (2012 PCr.LJ 21).
4. For the foregoing reasons, this petition is allowed and the sentence of the petitioner/ convict is suspended and he is directed to be released on bail subject to his furnishing of bail bonds in the sum of Rs. 500,000/-(rupees five hundred thousand only) with two sureties in the like amount to the satisfaction of the Deputy Registrar (Judicial) of this Bench. The petitioner is directed to appear before this Court on each and every date of hearing till the final decision of main appeal.
(K.Q.B.) Petition allowed
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