' KHAWAJA SHAHAD AHMED, J.--- Through the above captioned appeal the judgment passed by the Shariat Court of Azad Jammu and Kashmir on 22-2-2007 whereby two appeals titled Muhammad Ajaib v. Abdul Ghafoor and Abdul Ghafoor v. Muhammad Ajaib have been dismissed and the judgment recorded by the District Court of Criminal Jurisdiction, Kotli on 31-7-2006 is upheld. Along with the appeals an application for suspension of the sentence awarded to Abdul Ghafoor by the trial Court has also been filed in this Court wherein it has been contended that the appeal filed by the petitioner/ appellant is likely to succeed and in case the sentence recorded against him is not suspended he will bear an irreparable loss. It has also been contended that the sentence awarded against the petitioner is not warranted under law of the land.
2. While elaborating his submission for suspension of the sentence recorded by the trial Court and the Shariat Court Mr. Abdul Majeed Malik, the learned counsel for the petitioner, submitted that the trial Court has recorded sentence of Diyat after holding that the case of Qatle-Amd has been proved against the petitioner but despite of the fact that one of the legal heirs has waived the right of Qisas, the sentence of 10 years' imprisonment has also been recorded by the trial Court, therefore, in view of the facts of the case and the legal position holding the field, the petitioner could not be awarded any sentence including the death sentence or life imprisonment. It was further argued by the learned counsel that the trial Court has not recorded any ground or reason to justify 10 years' imprisonment to the petitioner under section 308 subsection (2).
3. As against it Ch. Muhammad Azam, the learned counsel for the complainant, contended that the counter-appeal for enhancement of the sentence recorded against the petitioner has also been filed in the Supreme Court, wherein he has prayed that on account of the facts of the case the petitioner can be sentenced to death or life imprisonment and while placing reliance on an unreported case of this Court titled Tasleem Akhtar and others v. Rameez and others and a reported case titled Sh. Muhammad Aslam and another v. Shaukat Ali alias Shauka and others 1997 SCM R 1307, he submitted that no valid ground for suspension of the sentence has been made out.
He prayed for dismissal of the application for suspension of sentence while referring to some other authorities from Pakistan jurisdiction.
4. While going through the record in the light of the arguments advanced by the learned counsel for the parties we feel persuaded to abstain from recording any finding or entering into any discussion in respect of section 308 read with sections 306, 307 and 311, read with sections 309 and 310 as the same would amount to embark upon the controversy which has still to be adjudged while hearing the appeal filed by the petitioner and counter-appeal filed by the complainant for enhancement of the sentence. The interpretation of the above-referred sections and the case-law referred to by the parties,. Particularly the finding of the Supreme Court of Pakistan reported as Sh.
Muhammad Aslam and another v. Shaukat Ali alias Shauka and others 1997 SCM R 1307, is also avoided. As far the unreported case placed on record is concerned the same is not found applicable in view of the fact that in that case the concession of bail extended by the Shariat Court to the principal accused Mazhar Iqbal was recalled while discussing the facts of a pending murder case and effect of furnishing of affidavit by some of the prosecution witnesses. Similarly the contention of the learned counsel that sentence of Diyat has been recorded against the petitioner for Qatl-e-Amd cannot be discussed. It is, however, recorded here that the report of this Court is correct that a bail application can be rejected keeping in view the facts of the case although a case of sentence of Diyat has been made out. The operative part of the judgment reads as under:- - "(6) We have given due consideration to the arguments raised at the Bar. It may be observed at the very outset that at bail stage a minute scrutiny of the incriminating material of prosecution evidence is not permissible. Even, the statement of Zulfiqar, P.W. Who was declared as hostile and the affidavit filed do not help the case of the respondents. The affidavit relied upon by the learned counsel for the accused persons was neither produced before the Shariat Court nor the same were produced in this Court by the concerned eye-witnesses but the same were produced by the accused persons before Assistant Registrar, Supreme Court. Thus, those cannot be considered in view of the authority of this Court cited above. It may also be observed that in the instant case the accused persons were not allowed bail on the ground that prima facie, they were not connected with the commission of offence of murder rather they were bailed out on the ground that one of the heirs of deceased Mst. Sameena Khan had forgone her right to enforce "Qisas" against the accused persons and that punishment of 25 years could not be awarded to them. It may be observed that mere fact that capital punishment of imprisonment for 25 years cannot be awarded to an accused person does not imply that he is invariably entitled to the concession of bail irrespective of the other circumstances of the case, i.e. Nature of the offence and the evidence against the accused persons. In the instant case, prima facie, Mazhar Iqbal, respondent, is connected with the commission of the offence of murder of the deceased. Therefore, it cannot be said that he cannot be given imprisonment as a "Tazeer" as has been envisaged under sections 311 or 302(c), A.P.C. The learned counsel for the accused-respondents failed to persuade us that punishment of imprisonment cannot be awarded to the said accused. Even if it is assumed for the sake of arguments that only "Diyat" is payable to the heirs of deceased who did not compound, it does not mean that accused persons are entitled to the concession of bail irrespective of the other circumstances of the case indicated above. Even in case of punishment in form of "Diyat" it is not obligatory that an accused person is necessarily released on bail.
(7) So far as the role attributed to Sikandar Hayat and Rameez is concerned, they are alleged to have shouted a Lalkara in terms that they would not spare the life of the deceased as he entered in the disputed land despite their warning; it has not been alleged that they had any arm with them or inflicted any injury to the deceased. The allegation of Lalkara in the aforesaid terms needs further inquiry. Hence, we dismiss the appeal so far as the aforesaid two accused are concerned.
The case of Mazhar Iqbal, accused, who is alleged to have caused the death by firing at Muhammad Arif deceased in Bazar, prima facie, stands on different footings. Therefore, we set aside the order whereby he was extended the concession of bail by the Shariat Court. His bail bond and personal bond executed in pursuance of order of the Shariat Court are hereby cancelled. He shall be arrested and confined to the judicial custody forthwith. Appeal partly accepted as indicated above."
5. We, therefore, have no quarrel that in pending case, the facts of the case can be looked into for grant or refusal of bail, therefore, even if we agree with the arguments of the learned counsel for the respondents on the basis of above-quoted judgment, we are of the view that in fact the case before us is not only one of grant of bail in a pending case rather it is a case of suspension of sentence passed by the trial Court which is approved by the Shariat Court of Azad Jammu and Kashmir. The trial Court after discussing in minute detail the prosecution evidence has come to the conclusion which so far holds the field that the petitioner can only be convicted under section 308.
While passing the sentence of Diyat on the ground that one of the legal heirs has waived her right of Qisas, the Court awarded 10 years' imprisonment under subsection (2) of section 308 and 6 months' imprisonment under section 13 of the Arms Act. The trial Court has also extended the benefit of section 382-B, Cr.P.C. To the petitioner. It reveals from record that occurrence took place on 15-7-2001 and the present petitioner Abdul Ghafoor murdered Muhammad Yousaf, deceased, in revenge as the deceased Muhammad Yousaf had murdered father of the present petitioner. After discussing the whole of the prosecution evidence the trial Court recorded its judgment on 31-7- 2006 which judgment cannot be brushed aside on presumptions and propositions still to be considered that the petitioner can be awarded the sentence of death or imprisonment for life as Tazir. Even otherwise we feel that an important aspect of the case and application of correct law relating to the grant of bail in pending cases or suspension of the sentence pending appeal have been ignored. This is correct that even if a legal heir waives his right of Qisas and the Court on that ground sentences an accused to Diyat which in fact is a punishment and not a compensation only to be distributed among the legal heirs of the deceased, the Court under subsection (2) of section 308 can sentence an accused, in addition to the punishment of Diyat to imprisonment of either description for a term which may extend to 14 years as Ta'zir. Section 308 is a penal provision but while considering a bail application or an application for suspension of sentence, the provisions of section 331, Azad Penal Code (Amendment) Act read with sections 497 and 426 of the Criminal Procedure Code have to be attended. Section 331 deals with the payment of Diyat and provides that the same may be made payable in lumpsum or in instalments spreading over a period of three years from the date of final judgment. Subsection (2) of section 331 provides that if the convict fails to pay Diyat or any part thereof within the period specified under subsection (1), the convict can be kept in jail until Diyat is paid in full or he may be released on bail if he furnishes security equal in amount of Diyat to the satisfaction of the Court. A perusal of the judgment reveals that no period for payment of the amount of Diyat has been fixed or mentioned in view of section 331 of Azad Penal Code (Amendment) Act, 1995 (Qisas and Diyat Act) as is to be fixed or mentioned by the trial Court. However, the phraseology and language used in section 331 reveals that it is basically the power of the trial Court to be exercised when final judgment is recorded and in case the trial Court fails to record any such date the Appellate Court or this Court, in case of appeal against the final judgment of the trial Court, can fix the same when final judgment is recorded. The Court has discretion to order for keeping the convict in jail until Diyat is paid in full or he can be released on bail if he furnishes a security equal to the amount of Diyat to the satisfaction of the Court. This part of the section empowers the Court to release a convict on bail with only one embargo that the convict has to furnish security in equal amount of Diyat. As far other relevant provisions of the Criminal Procedure Code are concerned, it hardly needs any emphasis that under subsection (1-A) with its clause (c) of section 426, Cr.P.C. Which indicate that the Court is required to release the convict person on bail if he has been punished with imprisonment for life or imprisonment exceeding 7 years and his appeal has not been decided within a period of two years of his conviction. As far subsection (1) of section 497, Cr.P.C. And its 3rd and 4th proviso is concerned, it deals with a case which is still pending or in which trial has not been completed. The discretion under section 497 vests in the Court to enlarge an accused on bail if he is detained or brought before the Court in a non-bailable offence but it further provides that such person shall not be so released if reasonable grounds appear to believe that he has been guilty of an offence punishable with death or life imprisonment or imprisonment for 10 yeaRs, A plain interpretation of all the above-referred provisions brings us to the conclusion that except the conditions laid down in all the three sections an accused/convict person can be released by the Court but at the same time the provisions are not absolute and the Court can look into the facts of the case and record its findings for or against the accused/convict. The case before us is not one of section 426 subsection (1-a) with its clause (c), we need not to record any finding keeping in view this provision of the Criminal Procedure Code. At present the case before us is that the petitioner has been sentenced to punishment of Diyat under section 308-A, in addition to imprisonment for a period of 10 years under subsection (2) with benefit of section 382-B. The record reveals that the petitioner is in jail for the last over 6 years and if the period during which he has been kept under the custody is excluded from the period of sentence awarded to him by the trial Court, he has to remain in jail for another 2/3 yeaRs, Similarly the period for payment of Diyat which can be granted to a convict is three years and the trial Court while recording its judgment has failed to fix any period or order to keep him in jail for non-payment. We, therefore, are persuaded to hold that it is a fit case in which the petitioner deservers to be released on bail till final disposal of the appeal pending adjudication in this Court. It may also be mentioned here that the punishment of Diyat, if finally confirmed by the Appellate Court is to be executed, failing which she convict has to remain in jail till the whole of the amount of Diyat is paid. It can even be recovered from his estate after the death of a convict.
' This application for suspension of the sentence is, therefore, allowed and the petitioner is ordered to be released on bail provided he furnishes a bail bond in the sum of Rs,10,00,000 along with a surety bond in the like amount to the satisfaction of any Magistrate First Class, Kotli. The sentence recorded against the petitioner shall remain suspended till final order in the original appeal is recorded by this Court.