1. SYED HASAN AZHAR RIZVI, J:- This jail appeal is against the judgment dated 25.01.2007 passed by the learned IInd Additional Sessions Judge, Thatta in Sessions Case No.107/2002 whereby he has convicted the appellants Juman and Amir Hassan and sentenced them for imprisonment for life as Tazir. They are further directed to pay fine of Rs.50,000/- each of the legal heirs of the deceased Ibrahim as compensation and in default thereof to undergo a further R.I. for six months, by extending benefit of Section 382-B, Cr.P.C.
2. The learned counsel for the appellants argued that according to jail roll submitted on 12.01.2011, the appellants have served out 08 years, 09 months and 1 day and earned the remission of 03 years (total sentence including remission is 12 years) and their remaining sentence is 13 years upto 12.01.2011.
3. The learned counsel for the appellants also argued that appellant No.1 is in advance age and suffering multiple ailments. He urged that this appeal was admitted for regular hearing on 13.06.2007 and since then it is pending. He further urged that number of applications under Section 426 Cr.P.C. have been filed, which are also pending. He referred the latest amendment made in the Criminal Procedure Code by virtue of Code of Criminal Procedure (Amendment) Act, 2011 and submitted that appellants are entitled for suspension of their sentence. Learned counsel in support of his submission has placed reliance on a recent case of GHULAM MUSTAFA vs. THE STATE (PLD 2011 Karachi 394).
4. The learned Assistant Prosecutor General, Sindh halfheartedly opposed the suspension of sentence awarded to the appellants, but he conceded that the appeal is pending for more than five years.
5. When confronted to newly added subsection 1(A) in Section 426 Cr.P.C., he has no satisfactory reply, but he submitted that while considering application under Section 426 Cr.P.C. the conduct of the appellants and their counsel is also to be examined for ascertaining the fact that who has caused delay in proceedings.
6. I have considered the arguments advanced by the learned counsel for the parties and gone through the material available on record.
7. Admittedly, the appeal was filed on 12.02.2007 and was admitted to regular hearing on 13.06.2007.
8. After admission of appeal, the matter came-up for the first time on 04.11.2009 when counsel for the appellant was present and case was adjourned to 26.11.2009. On 26.11.2009 learned APG requested that notice be issued to the complainant as it is a murder case, therefore, office was directed to issue notice to the complainant for 07.12.2009. On 18.10.2010 learned counsel for the appellants present and requested that appellant No.1 Juman is a man of advance age and he suffers different diseases, therefore, he may be referred to Medical Superintendent LMC, Jamshoro for ascertaining his age, nature of disease etc. Thereafter matter came up for hearing on 05.3.2010 when learned counsel for the appellants submitted that he has gone through the report of Medical Superintendent and it was ordered that appellant No.1 shall be admitted to Liaquat University Hospital and should not be shifted/released from the Hospital by the Medical Superintendent unless he is operated upon and fully recovered. On 24.12.2010, counsel for the appellants was not present and it was ordered that matter be fixed for hearing of application under Section 426 Cr.P.C. and office was directed to tag the application sent by accused Muhammad Juman from Jail alongwith this appeal and matter was adjourned to 30.12.2010. On 30.12.2010 appellants' counsel was present and submits that he has filed this appeal in 2007 but despite passing of more than three years neither his appeal nor his application under Section 426 Cr.P.C. has been heard and he requests that at least his application under Section 426 Cr.P.C. be heard and disposed of. On the said date matter was adjourned to 17.01.2011 with directions to the office to requisition the R & P of the case from the trial Court and also requisition the jail roll from the Central Jail, Hyderabad and the application under Section 426 Cr.P.C. may be fixed alongwith regular hearing. Notice was also ordered to the complainant with the caution that if he does not appear on that day the application under Section 426 Cr.P.C. may be heard and disposed of with the assistance of the learned counsel present. On 17.1.2011 appellants' counsel was present and none present for the State. Thereafter matter was repeatedly fixed but could not proceed on one reason or the other and lastly the matter was adjourned to today.
9. The appeal is pending since 12.2.2007 and the appellants have already served out substantial portion of their sentences, which is more than the half sentence. I have also examined the previous order sheets of the case file and reached to the conclusion that delay cannot be attributed to the appellants solely but for various reasons, the appeal was being adjourned from time to time. It is also a fact that both the appellants are lifer and according to clause (c) of subsection (1A), their appeal has not been decided within a period of two years of their conviction. If ultimately, the appeal of accused is dismissed by this Court, the provisions of subsection (3) of Section 426 Cr.P.C. would come into operation and the period of suspension of sentence would stand excluded and they would have to undergo the sentence awarded to them by the Court.
10. In the above circumstance, the application bearing CMA No.9437/2011 is allowed and sentence of both the appellants are suspended. The appellants are granted bail subject to furnishing solvent surety in the sum of Rs.2,00,000/- (Rupees Two Lac Only) and P.R. bond in the like amount to the satisfaction of the Nazir of this Court