' IFTIKHAR MUHAMMAD CHAUDHRY, J.-- This petition for leave to appeal has been filed against the judgment, dated 25th October, 2001, passed by Lahore High Court, Lahore whereby criminal appeal filed by petitioner for suspension of his sentence and release on bail has been dismissed.
2. Precisely stating facts of the case are that petitioner faced trial under section 10 of the National Accountability Ordinance, 1999 in Accountability Court, Rawalpindi along with another co-accused.
On completion of trial, vide judgment, dated 31st July, 2001, petitioner was convicted and sentenced to suffer 2 years' R.I. With fine of Rs,2,00,000 with the direction that if fine is not paid within a month, the same shall be recovered from him in accordance with law. Benefit of section 382-B, Cr.P.C. Was also extended to him.
3. Feeling dissatisfied from the conviction/sentence petitioner preferred appeal along with an application for suspension of sentence before Lahore High Court, Lahore, which was dismissed.
Subsequently, request for release was repeated but the same was declined vide order, dated 25th October, 2001. As such instant petition has been filed.
4. We have heard the learned counsel for the petitioner, who contended that according to his instruction petitioner after passing of the order, dated 31st July, 2001 by the Accountability Court had spent mostly half of the period of his sentence because he earned remission of six months, extended to all the prisoners on the eve of 14th August, 2001 and he had also earned some other remissions available to all the prisoners, according to the Jail Manual. He further stated that although petitioner had already served the half of sentence but his case has not been enlisted and when he made request before the learned High Court for his release by suspending sentence, the relief was declined to him purely for the technical reason i.e, second application was incompetent.
5. Learned counsel stated that this Court in the case of Khan Asfand Yar Wali and others v.
Federation of Pakistan, through Cabinet Division, Islamabad and others PLD 2001 SC 607 has held that in the interest of justice the High Court can exercise jurisdiction under Article 199 of the Constitution of Islamic Republic of Pakistan, 1973 for extending concession of bail to an accused, therefore, on the same analogy, the High Court has been empowered to suspend the sentence. He further argued that this Court also enjoy the same powers under Article 185(3) of the Constitution of Islamic Republic of Pakistan, 1973. Therefore, keeping in view the fact that petitioner had. Already undergone the half of his sentence, he be released on suspending the sentence as normally in such-like cases Court had exercised the jurisdiction in favour of convicts. In support of his this plea, he placed reliance on the case of Zulfiqar Ali v. The State 1994 SCM R 548.
6. Learned counsel appearing for State, however, opposed the petition and stated that instead of suspending the sentence, direction be made to the learned High Court for the disposal of appeal expeditiously. According to him as there is sufficient material available on record against the petitioner, therefore, he is not entitled for the suspension of sentence.
' Learned counsel for the petitioner contradicted his argument and stated that there is absolutely no evidence on record to hold that petitioner had acted as frontman and Benamidar of Brig. (R.)
Nadeem Imtiaz, the then Director, Intelligence Bureau and he has been convicted/ sentenced merely on the basis of conjuncture and surmises.
7. We are not inclined to enter into the merits of the case because we are prima facie of the opinion that the petitioner had served out major portion of his sentence because he was convicted on 1st July, 2001 and thereafter, on the eve of 14th August, 2001, remission of six months was also added in his count and because of the last 6 months he is in custody, therefore, he must have earned other remissions which are available to all prisoners under the Jail Manual. Therefore, following the dictum laid down by this Court in the case of Zulfiqar Ali (ibid), we are inclined to accept the plea of the petitioner.
As a consequence of above discussion, petition is converted into appeal and allowed and the sentence awarded to the petitioner is suspended and he is directed to be released on bail, subject to furnishing surety bonds in the sum of Rs,5,00,000 with two sureties in the like amount with P.R.
Bond to the satisfaction of the Registrar of this Court.
' Before parting with the judgment, we would like to observe that instant judgment will not cause prejudice to any of the parties at the time of final hearing of appeal.