Criminal Miscellaneous Application M-2/2011 ' The applicant was tried by the learned Additional .Sessions Judge, Multan in a private complaint along with his co-accused under sections 324/302/109/148/149, P.P.C. Who vide judgment dated 27-2-2006 convicted and sentenced the applicant as follow:-- ' Under section 302(b) P.P.C.
(i) Imprisonment for "Life".
(ii) Rs,2,00,000 (rupees two lacs) as compensation to the Legal heirs of the deceased under section 544-A, Cr.P.C. And in default of payment of compensation to further undergo six months' R.I.
' Benefit of section 382-B, Cr.P..C. Was also extended in favour of the applicant.
2. The learned counsel for the applicant seeks suspension of sentence of the applicant on .Statutory grounds by pressing into service section 426(1A)(C), P.P.C. Maintaining that the applicant is behind the bars since his arrest and there is no possibility of the appeal being heard and decided in the near future. The applicant is a previous non-convict. The applicant after being convicted and sentenced on 27-2-2006 filed a Criminal Appeal No,104 of 2006 in the year which has not been decided.
3. The facts of the case which need to be stated very briefly for the disposal of this petition are that after being convicted the applicant challenged his conviction by means of Criminal Appeal No,104 of 2006 which has not been decided till date. The applicant applied for suspension of sentence but the same was declined by this court vide order dated 11-11-2010. The applicant again applied for suspension of sentence and the same was also declined by this court vide order dated 15-9-2011 mainly on the ground that the complainant has filed a Criminal Revision No,145 of 2006 for enhancement of sentence of the applicant from life imprisonment to death wherein notice has been issued by this court to the applicant.
4. The learned counsel for the applicant submits that this court has erred in turning down an earlier application filed by the applicant for suspension of sentence on the ground that notice has been issued in a Criminal Revision for enhancement of sentence by this court, as this is factually incorrect. No notice has ever been issued by this court to the applicant in a Criminal Revision filed for enhancement of sentence by the complainant. The applicant was convicted on 27-2-2006, he filed a Criminal Appeal No,104 of 2006 in the year 2006 which has not been decided till date, hence the applicant is entitled to be released on bail on statutory grounds.
5. The learned Deputy Prosecutor-General as well as the learned counsel for the complainant have opposed the petition and submitted that the applicant was "put to notice" by this court in Criminal Revision No,145 of 2006 vide order dated 10-4-2006 hence there are no good grounds for suspending the sentence of the applicant.
6. After going through an order of this court dated 15-9-2011 it is clear that the sentence of the applicant was not suspended mainly on the ground that notice for enhancement of sentence has been served on the applicant in Criminal Revision No,145 of 2006 while placing reliance on Mst.Parveen Akhtar v. Niaz All and another 2011 SCM R 1107. The august Supreme Court of Pakistan in the case referred to above had held that it would be inappropriate to suspend the sentence of an accused, earlier sentenced to imprisonment for life where notice had been issued by the High Court for enhancement of his sentence. Without cavil to a principle of law referred to above by the august Supreme Court of Pakistan the controversy in hand which is to be resolved is whether an order of this court passed in Criminal Revision No,145 of 2006 "To be heard along with Criminal Appeal No,104 of 2006" amounts to a notice being issued to the applicant in terms of section 439, Cr.P.C. A joint reading of sections 439(2) and 439(6) of the Criminal Procedure Code (V of 1898) would show that mere pendency of a revision petition which is in the knowledge of the applicant would not mean that notice has been issued to the applicant for enhancement of his sentence.
Only after a Criminal Revision for enhancement of sentence is admitted to regular hearing can it be said that the accused has now been put to notice as to why his sentence should not be enhanced by this court. The august Supreme Court of Pakistan in Javed Ahmad alias Jaida v. The State and another 1978 SCM R 114 held that no particular manner of service to the accused has been prescribed in section 439(2), Cr.P.C. (V of 1898), however, in the absence of a prescribed procedure under section 439(2), Cr.P.C. It would be incumbent upon a court to issue a show cause notice to the accused/convict regarding the enhancement of sentence. Mere presence of an accused during the pendency of an appeal would not amount to a substantial compliance of a mandatory requirement that sentence of an accused cannot be enhanced without issuing notice to him as has been held in Nazal alias Nazoo v. The State 2000 PCr.LJ 2075.
7. It is trite that this court while hearing a revision petition under section 439, Cr.P.C. (V of 1898) would ordinarily not enhance the sentence awarded by the trial court unless the findings of the trial court are found to be perverse which have resulted in grave miscarriage of justice. Where the only order passed by this court in a Criminal Revision for enhancement of sentence of an accused is "To be heard along with Criminal Appeal No,104 of 2006", it can by no stretch of imagination be said that the accused has been put to notice for enhancement of sentence.
8. In normal course of events the applicant would be entitled to bail on the ground that more than two years have gone by and there is no likelihood of hearing of the appeal filed by the applicant in the near future. It has not been argued by the learned Deputy Prosecutor-General or the learned counsel for the complainant that the applicant is a previously convicted offender, a hardened desperate or dangerous criminal or is accused of an act of terrorism punishable with death or imprisonment for life. There is nothing on the record to show that the applicant has been dragging his feet and has been instrumental in causing delay in hearing of the main criminal appeal. The main Criminal Appeal was admitted to hearing on 20-3-2006 and has not been decided till date.
The trial court while convicting the applicant observed that the motive has not been established and proved beyond doubt. The trial court has also observed that it cannot be said with certainty as to whether or not the fatal injury could only be attributed to the applicant. On a tentative assessm ent which is to be made at this stage, this court is not of the Opinion that the applicant is a hardened or dangerous criminal.
9. For what has been stated above, this petition is allowed; sentence of imprisonment of the petitioner is suspended and he is admitted to bail subject to his furnishing "bail bonds in the sum of Rs,2,00,000 (rupees two lacs) with one surety in the like amount to the satisfaction of the Deputy Registrar (J) of this Court. The applicant is directed to appear before this Court on each and every date of hearing till the final disposal of the main appeal.