Through this 1st petition, petitioner/appellant Muhammad Akbar Ali seeks suspension of sentence on the statutory ground i,e, non-disposal of his appeal within the stipulated period mentioned in the amendment in Section 426, Cr.P.C. Petitioner/appellant alongwith his two co-accused namely Siraj Din and Muhammad Anwar, has been convicted and sentenced by the learned trial Court as under:-- Under Sections 302(b)/149, PPC Imprisonment for Life each as Ta'zir for the murder of each deceased namely Muhammad Akbar, Ghulam Haider and Shabbir Ahmad with a compensation of Rs, 1,00,000/- each to the legal heirs of each deceased and in default thereof to further undergo one year S.I. each.
Under Sections 427/149, PPC Rigorous imprisonment for two years each with fine of Rs,20,000/- each or in default thereof to undergo two months S.I. each.
Under Sections 148/149, PPC Rigorous imprisonment for three years each with fine of Rs,20,000/- each or in default thereof to undergo six months S.I. each.
Benefit of Section 382-B, Cr.P.C. was also extended to the petitioner and his co-accused and it was ordered that all the sentences shall run concurrently.
2. Learned counsel for the petitioner contends that during four investigations, petitioner was declared innocent and he has been convicted and sentenced in a private complaint filed by Muhammad Sharif complainant; that as per contents of the private complaint, no specific injury is attributed to the present petitioner rather there is general allegation against him that he also fired at the deceased, who had already received firearm injuries from his other co-accused; that petitioner-appellant has no previous criminal record; that in this case, he was arrested on 28.11.2005 and has been convicted and sentenced by the learned trial Court on 21.01.2010, he has preferred appeal before this Court on 19.03.2010, but even after the lapse of more than two and half years his appeal has not been decided; that the instant appeal relates to the year 2010 and there is no likelihood of early fixation of the same, therefore, in view of the amendment in Section 426 (1-A)
(c), Cr.P.C., he deserves suspension of his sentence.
3. Learned Law Officer as well as learned counsel for the complainant remained unable to point out any fault of the petitioner or any person acting on his behalf in any manner whatsoever for delay in disposal of this appeal. However, learned counsel for the complainant placing reliance on the ease law PLJ 1986 Crl. Cases (Karachi) 475 and PLJ 1986 Crl. Cases (Karachi) 482, contends that petitioner even after lapse of statutory period is not entitled for the relief prayed for because he is a hardened desperate criminal, case against him has already been proved beyond any shadow of doubt and he has been convicted and sentenced after a regular trial by the learned trial Court that the learned trial. Court has already taken a lenient view by awarding lesser punishment to the petitioner; that deeper appreciation of evidence at this stage is not desirable and after the conviction presumption of innocence is also not available to the petitioner and that there are serious allegation against the petitioner that he had fired at the, deceased, hence, he is not entitled for the relief prayed for.
4. Heard. Record perused:
5. Admittedly, petitioner was arrested in this case on 28.11.2005 and he is continuously behind the bars for the last about seven years. Admittedly, there is no reason attributable to the petitioner or any person acting on his behalf, for delay in disposal of this appeal, that relates to the year 2010 and there is no scope of early fixation of the same in the near future.
6. As far as proviso to the newly added sub-section (1-A) of Section 426, Cr.P. Code, is concerned, it is mentioned in the proviso that Court while dealing with the petition for suspension of sentence, can refuse to exercise its discretion if the convict is previously convicted or in the opinion of the Court is a hardened, desperate or dangerous criminal or is an accused of an act of terrorism punishable with death or imprisonment for life. The learned counsel for the complainant remained unable to provide any material against the petitioner to establish that the petitioner is previously convicted or a hardened dangerous criminal.
Keeping in view the facts and circumstances of this case, I am of the view that petitioner is not responsible for the delay in decision of his appeal in any manner whatsoever and further that case of the petitioner does not fall within the proviso of sub-section (1-A) referred above, therefore, without touching the merits of the case, I allow this petition and suspend the sentence of the petitioner till the final disposal of his criminal appeal, subject to his furnishing bail bonds in the sum of Rs, 200,000/- (Rupees two hundred thousand only) with two sureties each in the like amount to the satisfaction of the Deputy Registrar (Judicial) of this Court. However, petitioner shall remain present before this Court on each and every date of hearing fixed in the main appeal.