Mushir Alam J.--Petitioner has assailed the order dated 16.5.2017, whereby his application for suspension of his sentence was declined by the learned Single Judge of the Lahore High Court, Lahore, seized of the Criminal Appeal No, 276 of 2016 against his conviction and sentence awarded by the learned trial Court vide judgment dated 26.1.2016, whereby he was convicted and sentenced as follows:-- "under Section 324, PPC to rigorous imprisonment for ten years. The petitioner was also directed to pay Rs, 1,00,000/- as fine and in default to undergo simple imprisonment for four months.
Under Section 337F(vi), PPC to rigorous imprisonment for 'seven years with Daman of Rs, 1,00,000/- payable to Falak Sher (injured/complainant).
Benefit of Section 382-B, Cr.P.C. was also extended to the petitioner/appellant and sentences of imprisonment were ordered to run concurrently."
The petitioner was attributed fire shot injury on the back of the right shoulder of the complainant Falak Sher.
3. Learned Counsel for the Petitioner contended that the appeal is pending for a month short of two years, but otherwise he has served out his substantive sentence of almost three years and eight months, if at all, remissions extended by the learned trial Court under Section 382-B, Cr.P.C. then the sentence served out is half of that is inflicted by the learned trial Court. In cases where the substantial sentence having been served out is considered sufficient ground to concede bail as has been noted in the case of Anwar-ul-Haq v. National Accountability Bureau (PLD 2009 SC 388).
It was further urged that under Section 324. PPC the learned trial Court has inflicted full doze of the sentence, whereas, such sentence could have been "of either description for a term which may extend to ten years". It was further contended that it is not a case that falls under the embargo as placed on sentencing jurisdiction of the Court where the sentence could not be less than of five years, if the offence is stated to have been committed in the name or the pretext of honour. It was urged that instant offence is outcome of dispute over right of way.
4. It was conceded by the learned Additional Prosecutor General, Punjab that the offence was in respect of right of way, therefore, the discretion could have been exercised for the lesser sentence in the attending circumstances of the case. Since we are not attending to the appeal at the moment, such attending and or mitigating circumstances, whereby discretion could only be exercised now by the learned Appellate Court. In the instant case, since the petitioner has substantially undergone his sentence and it would be an exercise in futility to drive the petitioner again to the High Court to avail the remedy on the ground of statutory delay when barely one month remains to avail this remedy. Accordingly, this petition is converted into appeal and the same is allowed. The sentence of the appellant is suspended subject to his furnishing bail bonds in the of Rs, 100,000/- with one surety to the satisfaction of the learned High Court. Needless to say, if the appellant misuses or abuses the concession of bail, the learned Bench of the High Court seized of the appeal, may cancel the bail of the appellant.