Criminal Miscellaneous No. 1 of 2010. MANZOOR AHMAD MALIK, J.---Petitioner Bad son of Barql seeks suspension of his sentence awarded vide judgment dated 14-4.2009, passed by the learned Additional Sessions Judge, Jhang, whereby, he was convicted under section 302-B, P.P.C. For the murder of Zulfiqar All (deceased) and sentenced to imprisonment for life with a further direction to pay a compensation of Rs.50,000 to the legal heirs of the deceased as provided under section 544-A, Cr.P.C. In default whereof to further undergo SI for three months.
2. Learned counsel for the petitioner contends that the petitioner is an old Man of about 76 years of age; that he is also suffering from multiple diseases especially from the disease of prostrate; that he was operated upon twice in the hospital; that petitioner's ailment is clear from the report dated 23-12-2010 submitted by the Medical Board of DHQ Hospital, Faisalabad wherein it is clearly mentioned that the treatment of the disease with which the petitioner is suffering, is not available within the jail premises; that through a separate report of the same Medical Board dated 23-12- 2010, petitioner's age has been given as above sixty years and it is clearly stated in the said report that his upper age cannot be determined; that as per judicial record, his age has been mentioned as 75 years on 5.10-2009; that as per petitioner's Identity Cards issued in 1987 and 2003, his date of birth has been mentioned as 1936; that the petitioner was declared innocent by the police during investigation and was not arrested by the police; that at the conclusion of the trial, he was taken into custody at the time of announcement of the judgment of conviction and that the petitioner is entitled to bail after suspension of his sentence. In support of the above submissions, learned counsel has placed reliance on Peer NATIONAL ACCOUNTABILITY BUREAU BEARU through Chairman.
And others (2006 SCM R 1225), LAL DIN 'V. THE STATE (1994 PCr.LJ 1796), DR. MUHAMMAD ASHRAF V. THE STATE (2001 M LD 1576), HAKIM ALI ZARDARI V. THE STATE (2003 PCr.LJ 154) and Mufti ABDUL QUDDUS and others v. THE STATE (2004 YLR 1825).
3. On the other hand, the learned DPG assisted by the learned counsel for the complainant contends that old age, by itself, is no ground -for suspension of sentence of a convict; that, in any case, the petitioner is not suffering from any serious disease and he is not entitled to the relief of suspension of sentence sought from this Court as the sentence has been, awarded to the petitioner by the learned trial Court through a well reasoned judgment based on evidence. He has placed reliance on ZARIN KHAN V. TIE STATE (1980 SCM R 305), GHULAM RAZA V. KHUDA BUX AND ANOTHER (2005 SCM R 1904), INAYATULLAH V. MUHAMMAD PANAH AND OTHERS (1991 M LD 386) and HAJI RAHIMULLAH V. THE STATE AND ANOTHER (1970 SCM R 514).
4. I have heard learned counsel for the parties, have given anxious consideration to their respective submissions, have gone through the record.
5. The ground agitated by the learned counsel for the petitioner that the petitioner was found innocent during the course of investigation and he was not arrested by the police till the announcement of the judgment, has no force because the learned counsel, while making this argument, has lost sight of the fact that now the petitioner has been convicted and sentenced after a regular trial and the said ground is not available to him. However, as far as arguments of the petitioner's learned counsel regarding his ailment and old age are concerned, vide this Court's order dated 30-11-2010, the Medical Superintendent DHQ Hospital Faisalabad was directed to constitute a Medical Board to examine the petitioner qua his age, ailment with which he was suffering and possibility of treatment of such a disease within the premises of the Jail. In compliance to the said order, the requisite Report has been received which consists on two papers bearing Nos.30063 and 30065, both dated 23-12-2010. Report No.30065 relates to petitioner's age and according to the said report, his age is mentioned above 60 years with a further observation that his upper age limit cannot be determined. I have also gone through the judicial record and noted that according to the statement of the petitioner A recorded on 5-1-2009, his age has been mentioned as 75 years. Moreover, learned counsel for the petitioner has produced two original National Identity Cards of the petitioner issued in 1987 and 2003 wherein his date of birth has been mentioned as 1936. After retaining their photostat copies, original have been returned back to the learned counsel for the petitioner. As far as ailment of the petitioner is concerned, I have minutely perused Report No.30063 dated 23-12-2010 qua petitioner's medical examination by the Medical Board consisting of three doctors of DHQ Hospital, Faisalabad, which reads as under:-- "Convict prisoner Batti son of Barqi is suffering from Urethral stricture and urinary tract infection. In Urology Department of Allied Hospital Faisalabad, internal urethyotomy was done on 13-12-2010 and a folly's catheter No.16 was passed and advised to retain it for two weeks and may need further cystoscopy. He may need further follow up at Urology Department, Allied Hospital, Faisalabad, in case of recurrence of the problem because cystocopy facilities are available only in Urology Department of Allied Hospital Faisalabad which is a component of Punjab Medical College, Faisalabad. Moreover, the treatment of such ailment is not possible in Jail premises".
6. Keeping in view the petitioner's age and ailment, as detailed in the report of the Medical Board that "the treatment of such ailment is not possible in Jail premises", and while seeking guidance from the observations of the hon'ble Supreme Court of Pakistan in the case reported as Peer MUKARAM-HL-HAQ v. NATIONAL ACCOUNTABILITY BUREAU NAB throu h Chairman and others (2006 SCM R 1225), this petition is allowed and the conviction and sentence awarded to the petitioner vide the impugned judgment of conviction is suspended subject to furnishing bail bonds in the sum of Rs.2,00,000 (Rupees two lac only) with two sureties in the like to the satisfaction of the Deputy Registrar (Judicial) of this Court. However, it is made clear that the petitioner shall continue appearing before this court on each and every date fixed for hearing of appeal till its final disposal.