Tanveer Ahmad (petitioner) has filed this petition under Section 426(2-B) read with Section 561-A, Cr.P.C. seeking for suspension of his sentence and consequential release on bail, pending disposal of his appeal before the Hon'ble Supreme Court of Pakistan.
2. A resume of the relevant facts would reveal that the petitioner was tried by the learned trial Court (Additional Sessions Judge, Burewala) in case FIR No. 267 dated 23.7.2009, registered under Sections 302/34, PPC, P/S Sahuka, Burewala. and he was held guilty for an offence under Section 302 (b), PPC for committing `qatl-i-amd ' of Allah Ditta deceased and sentenced to death as Taz'ir with order to pay an .amount of Rs. 2,00,000/- as compensation under Section 544-A, Cr.P.C. to the legal heirs of the deceased, in default whereof to undergo another term of six months simple imprisonment, vide judgment dated 11.10.2012 passed by the said Court. The petitioner assailed his conviction through Criminal Appeal No. 784 of 2012, whereas the learned trial Court also sent Murder Reference No. 102 of 2012 under Section 374, Cr.P.C. for seeking confirmation or otherwise of the death sentence awarded by it to the petitioner . The appeal filed by the petitioner was dismissed by the learned Division Bench of this Court vide judgment dated 13.2.2017 by converting his death sentence to imprisonment for life as Taz'ir The petitioner was also held entitled to benefit of Section 382-B, Cr.P.C. The Murder Reference was answered in the negative. The petitioner challenged the judgment of this Court before the Hon'ble Supreme of Pakistan by way of filing Jail Petition No. 426 of 2017, wherein leave to appeal has been granted by the apex Court on 12.12.2019. Hence, instant petition.
3. Heard. Record perused.
4. We find it a case which mainly hinges on an order of the august Supreme Court of Pakistan passed on 12.12.2019 in Jail Petition No. 426 of 2017 filed by the petitioner against the afore -referred judgment of this Court whereby his conviction under Section 302 (b), PPC had been upheld but his sentence reduced to imprisonment for life. The apex Court while referring the various contentions of the learned counsel for the petitioner in aforesaid Jail Petition has granted leave to leave against the judgment of this Court in the following manner: "Learned counsel for the petitioner contended that the two Courts below have erred by not positively considering the crucial lapses in the prosecution case to prove beyond reasonable doubt the guilt of the present petitioner in the instant case, inter alia; that the only injured witness, who was the brother of the deceased, and stated to have been present at the spot was not produced by the prosecution rendering a presum ption in favour of the petitioner; that the best evidence has been withheld by the prosecution, as the same would have benefitted the present petitioner; that the crime was an unwitnessed night occurrence and there was no source of light for the so called witnesses-to have identified the accused; that there was an unexplained delay in the lodging of the crime report and conducting the postmortem of the deceased, which clearly suggested prior deliberation in falsely nominating the petitioner as an accused in the crime report; that the belated recovery of blood stained knife even with positive serologist report was legally inconsequential, as the human blood by that time would have disintegrated beyond chemical recognition; that the ocular evidence contradicts the medical evidence, as there is no medical evidence of the injuries on the deceased attributed to the other co-accused; and that on the same set of evidence, the other four co-accused have been acquitted by the trial Court, and their acquittal has not been challenged by the complainant party; and thus, the present petitioner could not be convicted on the same set of evidence without there being any independent material corroborating evidence, which was wanting in the present case.
2. The points raised needs consideration , therefore, we grant leave to appeal in the instant petition to reappraise the entire evidence"
5. There cannot two opinions about the argument of the learned Additional Prosecutor General that mere grant of leave to appeal did not necessarily mean that the petitioner had become entitled to suspension of his sentence as a matter of right, but it could not be brushed aside either that in a suitable case of alike nature the sentence of a convict may be suspended as envisaged by Section 426 (2-B), Cr.P.C. Reliance in this context is placed on "Talib Hussain vs. The State" ( PLD 2014 Lahore 574 ), wherein it has been observed as under: "When against any sentence, imposed or maintained by a High Court, a convicted person was granted special leave to appeal by the Supreme Court then under S. 426 (2B), Cr.P.C. a High Court, pending the appeal before the Supreme Court, may suspend the sentence or order ippealed against, and release the convict on bail." ,
6. Reverting to the case in hand, the unexplained delay in lodging of the crime report and conducting of postmortem examination of the deceased, belated recovery of knife, non-production of the only injured witness who was the brother of deceased and stated to have been present at the spot, identifica tion of the accused during night time occurrence without taking into possession of electricity bulb though was lit at the spot at the relevant time, the discrepant medical evidence with regard to the injuries attributed to the other acquitted co-accused, were the factors pressed into service by the learned, counsel for the petitioner , which persuaded the apex Court to grant leave in the above noted Jail Petition. All the contentions made would be open to a detailed scrutiny by the apex Court and probability cannot be ruled out that the prosecution case may fall through in the long run. The petitioner after having been arrested on 12.9.2009 has been languishing in jail ever since. The continued incarceration for indefinite period of time may not serve any useful purpose for the prosecution's case.
7. For the foregoing reasons, we feel persuaded to allow this petition, which we do accordingly . The sentence of the petitioner is suspended pending decision of his appeal before the Hon'ble Supreme Court of Pakistan and he shall be released from jail subject to his furnishing bail bonds in the sum of Rs. 1,00,0 00/- (Rs. One lac only) with two sureties each in the like amount to the satisfaction of Deputy Registrar (Judi) of this Bench.