CRL. MISC. NO.1-2012 ' SYED MUHAMMAD KAZIM RAZA SHAMSI, J.---Criminal Miscellaneous No.1 of 2012, filed by the petitioner Abdul Wahab in Criminal Appeal No.2154 of 2009, is proposed to be disposed of. The petition has been filed seeking suspension of the sentence awarded to the petitioner vide judgment dated 23-11-2009, on the ground of delay in decision of the appeal within the statutory period of two years.
2. The petitioner along with his other co-accused was tried in case F.I.R. No.166 of 2008, dated 26-5- 2008. Registered under sections 302, 324, 337-A(ii), 337-F(i), 337-F(v), 148, 149, 34, P.P.C. With Police Station Zafarwal District Narowal. The learned Trial Court vide judgment dated 23-11-2009, held the petitioner responsible for committing Qatl-e-Amd of Muhammad Aqeel and by convicting him under section 302(b), P.P.C. Awarded sentence of imprisonment to life. The co-accused Amir Sohail and Muhammad Bilal were also awarded same punishment. All the three were also convicted under sections 324, 337-F(i), 337-F(v) read with section 34, P.P.C. For causing injuries with the blunt weapons to Maqbool Hussain injured P.W. And inflicted different other sentences as narrated in the judgment. The above said conviction has been assailed by the petitioner in Criminal Appeal No.2154 of 2009, which appeal is awaiting decision up-till now.
3. Mian Muhammad Ashraf, P.W.15, the complainant of the case and father of Muhammad Ageel, deceased, reported the matter to the police mentioning that the petitioner Abdul Wahab armed with Sarya, Amir and Usman armed with dagger (Khanjar), Fahad armed with rod, Bilal armed with iron pipe, Umar armed with Chhurri, Shoaib and Noman armed with sotas along with three unknown persons armed with pistols launched murderous assault upon his son Muhammad Aqeel.
Abdul Wahab and Amir Sohail, raised lalkara and inflicted sarya blows on the head of the deceased who fell on the ground whereafter the other co-accused started beating with their respective weapons.
4. It is pertinent to mention that sentences inflicted upon Amir Sohail, co-accused were suspended by this court vide order dated 10-6-2010, passed in Criminal Miscellaneous No.1 of 2010 while the sentence awarded to Muhammad Bilal, co-accused was also suspended on 3-2-2012, passed in Criminal Miscellaneous No.591-M of 2011.
5. While taking the concession awarded by subsection (1)(A) of section 426, Cr.P.C., the learned counsel for the petitioner submitted that three years have elapsed but till-date the appeal of the petitioner has not come up for hearing and could not be decided within this period for no fault of the petitioner, thus, he is entitled for the protection of law as narrated above. He further submitted that the head injuries received by the deceased were caused with blunt weapons with which allegedly the petitioner and co-accused Bilal and Fahad were armed, thus, it cannot be said that the petitioner was solely responsible for causing head injuries to the deceased. He further submitted that Amir Sohail and Muhammad Bilal, co-accused have been admitted to bail by this court and the role of the petitioner is at par with them, thus, he is also entitled for the same treatment.
6. The petition has been resisted by the learned counsel for the complainant arguing that the petitioner had raised commanding Lalkara and started the occurrence by inflicting Sarya blows at the head of the deceased, thus, his case is not at par with his co-accused. He further submitted that according to postmortem report, the deceased had received four injuries at his head caused with blunt weapons which were caused by the petitioner, thus, he acted in a desperate and dangerous manner, as such, is not entitled for the concession enunciated by the law. Further added that P.W.15 in his statement had specifically nominated the petitioner for causing four injuries at the head of his son who after receiving the same fell on the ground whereafter the other co-accused gave general beating with their respective weapons. He prayed for dismissal of the application.
7. Patties heard. Record perused.
8. No doubt by virtue of amendment made in section 426, Cr.P.C. Subsection (1)(A) has been added by the Code of Criminal Procedure (Amendment) Act, 2011, providing a concession to the convicts whose appeals could not be decided within the statutory period of two years, for being released on bail till the decision of their appeals but there is a qualification provided by the said subsection for availing the concession provided in sub-clause (c), to the effect that such concession cannot be extended to a person who is a desperate or hardened criminal. Undeniably, the appeals filed by the petitioner could not be decided within the time span provided by law and he could be entitled for such concession but the case of the petitioner falls within the proviso attached with the section supra as according to the statement of P.W.15, the petitioner had initiated the attack and at first instance gave four injuries with his Sarya at the head of the deceased. No other convict has been nominated for causing head injuries. This fact is supported by the medico-legal report as well as the postmortem report which shows the desperateness of the petitioner while committing the offence. Further more, the complainant of the case has also filed criminal revision praying for enhancement of sentence awarded to the petitioner which is also pending in this court and is to be taken up when they appeals are fixed for regular hearing. The learned counsel for the petitioner has placed reliance upon various judgments of this court as well as of the august Supreme Court of Pakistan to say that release on bail is a statutory right of a person but in those cases the convicts were not found to have acted in a desperate or dangerous manner, thus, the case-law is of no help to the petitioner.
9. For what has been said above, the instant petition having no merits dismissed.