' The applicants herein, by this application under section 561-A of Cr. P. C. Have sought the quashment of the pending proceedings, instituted against them, on the basis of the two F. I. R. Nos.
64 (Non. Cog) and 85 of 1977, for which the charge-sheet has been submitted by the police, for offences under sections 341, 363, 504, 323, P. P. C. In the Court No, V (East) of the A. C. M., Karachi.
2. The brief facts of the case are that on 23rd July 1977, at about 11-15 p. m., the Respondent No, 2, complainant Qaiser Azhar Ali Syed, alongwith his mother, father Syed Barkat All and two sisters, were returning home, in Mohammad All Housing Society, from a visit to their relatives, near Sabzi Mandl. As soon as, they came in front of the main gate of their house, they found a Volkswagon Car, bee-',-4 No, KCD 8131 coming fast and stopped in front of their car. Mst. Huma aged about 12/13 years, got out of the car and ran to open the gate, when the four occupants, in the car, including the two applic'ants (Sanaullah Barni and Mukhtar Hussain), came out of their car and while abusing, beat Syed Barkat Ali father of the complainant, and also caused injuries to his mother. The applicant No, 1 and his friend Mukhtar Hussain applicant No, 2, forcibly dragged Mst. Huma, sister of the complainant and put her in their car and drove away, in spite of her screaming for help. The car of the applicants was followed by the complainant, who was driving the car. His father, mother and sister had also accompanied him. They were chasing the car of the applicants, shouting for help.
The passersby, on the road, joined in the chase and followed applicants in their cars and scooters.
They were followed by the Respondent No, 2 and his father, mother and sister, in their car. The car of the applicants was overtaken and stopped at the crossing of Shaheed-e-Millat and Bahadur Shah Zaffar Roads. With the help of the public men, Mst. Huma, a minor girl, was rescued. The applicants had abused and beaten Syed Barkat Ali and his wife, the father and mother of the complainant. Syed Barkat Ali being an old heart patient, had fainted there. The applicants had escaped from there. The complainant had lodged the report at the police station, which was first entered in the no-cog. Register and the complainant was directed to have recourse in the Court of law. Then a written report was lodged by the complainant and a case under sections 341, 323, 363, 511, P. P. C. Was registered on 25th July 1977, at about 02-00 a. Rn. After completing the investigation, the case was challaned in the Court.
3. Between the applicant No, 1, Sanaullah Barni and Syed Barkat Ali, father of the complainant, the civil litigation, is already pending in the Court. A civil suit was filed in the Court of Senior Civil Judge No, VI, in respect of the custody of the minor Syeda Sultana under the Guardianship Act, in which Mst. Ijaz Fatima, maternal grandmother of Syeda Sultana, is the plaintiff and the defendants are Syed Barkat Ali, and another. Syed Barkat Ali is the paternal uncle of Mst. Syeda Sultana. The learned VIth Senior Civil Judge, Karachi, had ordered the production of the minor, through the police, for handing her over to the plaintiff, by the order dated 25th February 1977. Appeals were also filed against the said order in the High Court, as well as the Supreme Court and the same were dismissed.
4. For the motive, the complainant has alleged that due to the litigation between the parties, the applicants had come to their house and had kidnapped his sister Mst. Huma and had attacked his father and had committed the alleged offences.
5. I have heard the learned counsel for the applicants, Mr. S. Nasiruddin, and Mr. I. H. Zaidi for respondent No, 2 and Mr. Ghulam Ali Agha A. G. For the State.
6. The learned counsel Mr. S. Nasiruddin has taken me through the orders passed in the Civil suit, as well as, statements of the witnesses recorded by the police under section 161, Cr. P. C. In the police case. He has argued that the non-cog report which was lodged first in point of time, did not make any mention of kidnapping. Later on, a written report was filed on the basis of which the police had registered the case, for an attempt to kidnap Mst. Huma, and other offences under sections 341, 263, 511, 34, P. P. C. It was next argued that the applicant Sanaullah Barni had also filed Criminal Procedure Code (V of 1898)- - S. 426 (1) (a)-Delay -- Suspension of sentence - Petitioners sentenced to two years' R. I.-Delay alone in disposal of appeal, held, no ground for suspension of sentence-Petition for suspension of sentence dismissed in circumstances of case-Petitioners, however, could apply for suspension of sentence, if appeal not disposed of within 6 months.-[Delay-Sentence]. [p. 733]A Yousuf and 5 others v. The State 1977 P Cr. L J 134 ref. Abaidullah v. State PLD 1978 Lah. 1349 rel. Sh. Riaz-ul-Haq for Appellants.
Mohammad Anwar Khokhar for the State.
' Fazal Din and Maqbool Shah were tried by Senior Special Judge, AntiCorrouption, Punjab, Lahore on number of charges brought out against them. Fazal Din a peon employed in Tehsil Office of Gujranwala was found guilty under sections 420, 409, 468, 471, 109, P. P. C. Read with section 5 (2) of Prevention of Corruption Act, 1947 and was sentenced to undergo rigorous imprisonment for a period of two years and was also ordered to pay a fine of Rs, 50,000 and in default of payment of fine to further undergo rigorous imprisonment for a period of two years. Maqbool Shah, who was employed as Patwari was found guilty under sections 420, 409,
109. P. P. C. Read with section 5 (2) of Prevention of Corruption Act, 1947 and was awarded the same sentence which was awarded to Fazal Din. An appeal has been filed against the order of conviction by the convicts and a petition for suspension of sentence has also been moved under section 426, Cr. P. C. Learned counsel on behalf of the appellants has contended that the evidence adduced by the prosecution in support of various charges brought out against the appellants was wholly unreliable and that the leartied Senior Special Judge has erred in holding the appellants guilty and convicting them for the various offences mentioned above. It has also been urged on behalf of the appellants that their appeal is not likely to be heard in the near future and as such the order of sentence passed against them may be suspended and the appellants may be released on bail. Reference in this connection has been made to Yousuf and S others v. The State (1).
2. The petition for suspension of the operation of the order of sentence has been opposed on behalf of the State and the learned State counsel has contended that there is overwhelming evidence on record to sustain the order of conviction and that delay in the disposal of the appeal alone is no ground for suspending the order of sentence and releasing the appellants on bail. In support of the above arguments, reliance has been placed on PLD 1978 Lah.
1349.
3. 1 have considered the .Arguments of the parties' counsel. A mintue examination of the evidence on record does not seem to be proper while disposing of a petition under section 426, Cr. P. C. As the proper stage for such examination is at the time of hearing the appeal itself. Fazal Din appellant is accused of having sold a piece of land on the basis of a forged entry in the revenue record made by Maqbool Shah appellant.
(1) 1977 P Cr. L J 134 ' Prima facie the prosecution has succeeded in making out a case against the appellants.
4. The delay in the disposal of the appellants' appeal cannot be considered as a ground for allowing them bail or for suspending the order of sentence passed against them for the similar reasons as given in the case relied upon by the State counsel. I, therefore, do not see any ground for allowing the appellant's petition under section 426, Cr. P. C. And the same is dismissed. The appellants however may apply for suspension of the order of sentence under section 426 (1) (a), Cr. P. C. If their appeal is not disposed of within 6 months from the date of order of their conviction.