Crl. Misc.No.01/2020 Crl. Misc. No.01/2021 Allegedly being involved in case F.I.R No.15/2013 dated 20.01.2013, offence under Sections 302, 324, 337-F(iii), 148, 149 PPC and Section 7 of Anti-T errorism Act, 1997 (subsequently deleted), registered at Police Station Hadyara, Lahore, with the allegation of committing qatl-e-amd of Salman Akbar , Farhan Akbar and Muhammad Ashraf besides launching murderous assault/causing injuries on the person of Afyan Ashraf by making firing with their respective weapons i.e. Kalashnikovs , the appellants/applicants alongwith their co-accused namely Manzoor Hussain and Rafaqat Ali (since acquitted) were tried by the learned Additional Sessions Judge, Lahore and vide judgment dated 22.12.2017, they have been convicted and sentenced as under:- i) Under Section 302(b) read with Section 149 PPC sentenced to imprisonment for life on three counts each as Tazir with compensation of Rs.1,00,000/- each as envisaged u/s 544-A Cr.P.C. payable to the legal heirs of the three deceased persons and in default whereof to further undergo six months S.I. each. ii) Under Section 148 PPC sentenced to three yeas R.I. each along with fine of Rs.10,000/- each and in default whereof to further undergo three months S.I. each. iii) Under section 324 PPC sentenced to seven years R.I. each alongwith fine of Rs.50,000/- each and in default whereof to further undergo three months S.I. each.
All the aforesaid sentences were ordered to run concurrently . Benefit of Section 382-B Cr.P.C. was also extended to them.
2. Muhammad Arshad and Nauman Arshad , the applicants, through these criminal miscellaneous applications filed under Section 426 Cr.P.C, have sought their release on bail by way of suspen sion of their sentences, pending disposal of their appeal on the ground that despite the lapse of statutory period of two years as contained in Section 426(1-A)(c) Cr.P.C, their appeal could not have been decided, particular ly, when such delay in deciding their appeal had not occasioned, either due to any act or omission of the applicants or any other person acting on their behalf and nothing is available on the record to suggest that they are previously convicts for an offence punishable with death or imprisonment for life or hardened desperate or dangerous criminals or they are accused of an act of terrorism punishable with death or imprisonment for life.
3. It has been contended by the learned counsel for the complainant that as the two co-accused of the applicants namely Manzoor Hussain and Rafaqat Ali were acquitted by the learned trial court through the impugned judgment, the complainant has filed Criminal Appeal No.155081/2018 under Section 417 (2-A) Cr.P.C against their acquittal arisen out of the same/common facts/rec ord, which is to be heard by a learned Division Bench, as provided under Chapter-3, Part-B of the Lahore High Court Rules and Orders (Volume V) (Revised Edition 2010), therefore, the instant applications as well as the appeals against conviction are not maintainable before a Single Bench, as such the matter may be ordered to be placed before the learned Division Bench. On merits, the learned counsel for the complainant has submitted that during the course of occurrence as many as three persons were murdered by the applicants in a reckless manner , therefor e, they being hardened, desperate and dangerous criminals are also not entitled to the relief prayed for .
4. Arguments advanced pro and contra, have been heard. Record perused.
5. First of all, I would like to decide the above noted preliminary objection, raised by the learned counsel for the complainant qua maintainability of the instant applications before Single Bench. The applicants had filed the appeal against their conviction and sentence on 09.01.2018. It has been noticed with concern that the aforementioned appeal against acquittal under Section 417 (2-A) Cr.P.C was filed by the complainant on 19.01.2018 and despite the lapse of more than three years , till date the same has not been fixed for hearing before the Court. The question in the facts of this case, requir ing its determination is as to whether mere filing of an appeal against acquittal of a co-accused under Section 417(2-A) Cr.P.C will be a stumbling bar before the Single Bench in hearing the appeal against conviction and sentence up to the imprisonment for life and the application moved therein, seeking suspension of sentence, in view of Chapter-3, Part-B of the Lahore High Court Rules and Orders (Volume V) (Revised Edition 2010). For ready reference, it will be appropriate to reproduce the relevant portion of Chapter- 3, Part-B of the Lahore High Court Rules and Orders, as under:- "PART-B JURISDICTION OF A SINGLE JUDGE AND OF BENCHES OF THE COUR T
1. Save as provided by law or by these rules or by a special order of the Chief Justice, all cases shall be heard and disposed of by a Judge sitting alone.
Explanation.- A case includes a motion application, petition, reference, suit, appeal, revision or other proceedings to be heard and disposed of by the High Court under any law in the exercise of its ordinary , extra-ordinary , original or appellate jurisdiction.
2. (1) Save as provided by these rules, the following cases shall be heard and disposed of by a Division Bench:-
(i) (a) A regular first appeal from the decree of a subordinate court, jurisdictional value of which exceeds that of the District Court prescribed by the Civil Courts Ordinance, 1962 (No.II of 1962), and any cross- objection to decree.
(b) An appeal under the Land Acquisition Act if the jurisdictional value involved in the appeal exceeds the one indicated in sub-clause (a) above.
(ii) (a) An appeal or reference in a case in which a sentence of death has been passed.
(b) A case in which a notice has been issued to person sentenced to imprisonment or imprisonment for life requiring him to show cause as to why the sentence should not be altered to death.
(c) An appeal by -
(i) the Provincial Government under section 417(1) of the Code of Criminal Procedure, or
(ii) the complainant under section 417(2) of the Code after grant of leave by a Singe Judge, or
(iii) an aggrieved person under secti on 417(2-A) of the Code, from an order of acquittal of a charge punishable with death or imprisonment for life.
(2) A Single Judge while sitting in the long vacation or winter holidays, or when he is the only Judge available at a Bench, may exercise the original and appellate jurisdiction vested in the Court-
(i) in any criminal matter other than one mentioned in clause (ii) of sub-rule (1);
(ii) in any urgent matter connected with, relating to or arising out of, the execution of a decree; and
(iii) in any miscellaneous matter which in his opinion requires immediate attention."
Upon bare reading of above reproduced Rule, it becomes quite clear that except where it has been provided either by law or by these Rules or by a special order , being exclusive prerogative of the Hon'ble Chief Justice, all the cases shall be heard and disposed of by a Judge sitting alone/Single Bench . The word "a case" (as per explanation) includes a motion application, petition, reference, suit, appeal, revision or other proceedings to be heard and disposed of by the High Court under any law in the exercise of its ordinary , extra- ordinary , original or appellate jurisdiction. Rule 2 further provides that except as provided by these rules, following cases will be heard by a Division Bench:-
(i) Under Rule 2 (1)(i) sub-clauses (a) & (b), a regular first appeal from the decree of a subordinate court exceeding the pecuniary jurisdictional value of District Court prescribed by the Civil Courts Ordinance, 1962 (No.II of 1962) and any cross-objection to the decree and an appeal under the Land Acquisition Act if the jurisdictional value involved in the appeal exceeds the one indicated in sub-clause (a);
(ii) Under Rule 2(1)(ii)(a) an appeal or reference in a case in which a sentence of death has been passed;
(iii) Under Rule 2(1)(ii)(b) a case in which a notice has been issued to person sentenced to imprisonment or imprisonment for life requiring him to show cause as to why the sentence should not be altered to death;
(iv) Under Rule 2(1)(ii)(c) (i, ii, iii), an appeal by the Provincial Government under section 417(1) of the Code of Criminal Procedure or by the complainant under section 417(2) of the Code after grant of leave by a Single Judge or by an aggrieved person under section 417(2-A) of the Code, from an order of acquittal of a charge punishable with death or imprisonment for life.
In addition to the above, it has further been provided in sub-rule (2) of Rule 2 that (i) in any criminal matter other than one mentioned in clause (ii) of sub-ru le (1), (ii) in any urgent matter connected with or relating to or arising out of the execution of a decree and (iii) in any miscellaneous matter which in his opinion requires immediate attention, a Singe Judge while sitting in the long vacation or winter holidays or when he is the only Judge available at a Bench may exercise the original and appellate jurisdiction vested in the Court. From the above it is quite obvious that Rule 2(1)(ii)(b) does not place any bar in hearing the matters by a Single Judge during the pendency of other connected matters till the notice in appeal against acquittal has been issued.
6. The mandate of the above discussed Rule 2(1)(ii)(b) of the Lahore High Court Rules and Orders appears to be quite in line with the provisions of Section 422 of the Code of Criminal Procedure, 1898, the verbatim of which is reproduced below for proper comprehension:- "If the Appellate Court does not dismiss the appeal summarily , it shall cause notice to be given to the appellant or his pleader , and to such officer as the Provincial Government may appoint in this behalf, of the time and place at which such appeal will be heard, and shall, on the applicati on of such officer, furnish him with a copy of the grounds of appeal; and, in cases of appeals under Section 411-A, sub-section (2) of Section 417, the Appellate Court shall cause a like notice to be given to the accused."
Perusal of the above provision unequivo cally indicates that if an appeal is not dismissed by an appellate court summarily , it shall cause notice to be given to the appellant or his pleader and to such officer as the Provincial Government may appoint in this behalf, of the time and place at which such appeal will be heard and shall on the application of such officer furnish him with a copy of the grounds of appeal. And in cases of appeal under Section 411-A, sub-section (2) of Sectio n 417 the Appellate Court shall cause a like notice to be given to the accused . The word "shall" used in Section 422 Cr.P.C makes the issuance of notice to the accused mandatory , so that the accused be given a fair opportunity of hearing to defend himself, as this provision is based upon the principle of "audi alteram partem" and has duly been enshrined in the form of Article 10A of the Constitution of Islamic Republic of Pakistan, 1973. This principle is fully applicable in appea l being continuation of trial. I am of the considered view that unless the learned Division Bench passes an order in terms of Section 422 ibid. read with the above rule by issuing notice to the acquitted accused, mere filing of an appeal against acquittal has no bearing upon maintainability of any such appeal or application seeking suspension of sentence, before the Single Bench, for the reason that in case a convict makes out a case for suspension of his sentence either on merits or on statutory ground and he is accordingly released on bail by way of suspension of his sentence pending his appeal, it will cause no prejudice either to the complainant or the State as in case of dismissal of his appeal and upholding of judgment of his conviction, the period during which the convict remained on bail, in view of the provisions of Section 426(3) of the Code of Criminal Procedure, 1898, which reads that "When the appellant is ultimately sentenced to imprisonment, or imprisonment for life, the time during which he is so released shall be excluded in computing the term for which he is so sentenced", shall be excluded from his total period of imprisonment. But, on the other hand, if the conv ict is ultimately acquitted of the charge there can be no compensation for the period for which he remained in jail because of non-hearing of his appeal or application for suspension of sentence. Even under Article 4 of the Islamic Republic of Pakistan, 1973 it has in clear terms been declared that it is the inalienable right of every citizen for the time being within Pakistan, wherever he may be, to enjoy the prote ction of law and to be treated in accordance with law. Article 9 of the Constitution also commands that no person shall be deprived of life or liberty save in accordance with law or the Constitution of Islamic Republic of Pakistan, 1973. Therefore, it appears to be more appropriate and in the interest of justice to decide the instant applications for suspension of sentence pending appeal against acquittal of co- accused of the applicants. Accordingly , the objection raised by the learned counsel for the complainant is repelled.
7. As far as the instant applications for suspension of sentences of the applicants are concerned, there is no denial to this fact that the applicants are incessantly behind the bars since the date of their arrest i.e. 14.04.2013 and they were awarded aforesaid sentences vide judgment dated 22.12.2017; they have undergone the sentence of more than 08 years and the disposal of their appeal is not within sight in the near future, hence I am constrained to observe that liberty of a person being precious right, which is also safeguarded/guaranteed under the Constitution of the Islamic Republic of Pakistan, 1973. Thus, in view of amendment made in the Code of Criminal Procedure (Amendment) Act, 2011, dated 18th April 2011, the ground of statutory delay is available to the applicants.
Moreover , allegedly the occurrence in this case is repercussion of a personal enmity between the parties and there is nothing on the record to suggest that the applicants are hardened, desperate or dangerous criminals or they are previously convicted offenders for an offence punishable with death or imprisonment for life or are accused of an act of terrorism punishable with death or imprisonment for life, hence, keeping in view the above facts, since the applicants have earned the statutory right for suspension of their sentences and grant of bail as provided under section 426 (1-A)(c), Cr.P.C, therefore, I am of the considered view that if after suffering the incarceration in jail, the applicants are ultimately acquitted, there will be no compensation for their incarce ration. Hence, while accepting the instant applications, the above mentioned sentences of the applicants are ordered to be suspended till the final decision of the titled appeal. The applicants are directed to be released on bail subject to their furnishing of bail bonds in the sum of Rs.100,000/- (Rupees one hundred thousand only) each with two sureties each in the like amount to the satisfaction of the Deputy Registrar (Judicial) of this Court. The applicants shall ceaselessly appear before this Court till the final decision of the main criminal appeal.
8. Before parting with this order , in the light of discussion made hereinabove and at the costs of a little repetition, it is observed that since an appeal against the judgment of acquittal under Section 417 Cr.P.C falling within the purview of Rule 2(1)(ii) of Chapter-3, Part-B of the Lahore High Court Rules and Orders (Volume V), has to be heard by a Division Bench, whereas an appeal against conviction not involving the death sentence, having arisen out of the one and the same judgment, is to be heard by a Single Bench under Rule 1 of the abovementioned Chapter and despite the difference in the principles applicable to interfere with the judgment of acquittal and that of against conviction, there remains a likelih ood of conflict of opinion on the same record, which may cause prejudice to the case of either side, in case the appeal against conviction is decided prior to the decision of appeal against acquittal, therefore, to rule out such possibility I feel it to be equitable for this Court to issue a direction to the Additional Registrar (Judicial) of this Court for fixation of appeals falling within the purview of Rule 2(1)(ii)(b) ibid. before final hearing of such appeals against conviction.