Ahmad Ali and Mst. Rehana alias Rukhsana alias Afsana Kausar (petitioners) have filed this petition under section 426(2-B) read with section 561-A, Cr.P.C. seeking for suspension of their sentence and consequential release on bail, pending disposal of their appeal before the Hon'ble Supreme Court of Pakistan.
2. A resume of the relevant facts would reveal that both the petitioners were tried by the learned trial court (Additional Sessions Judge, Sahiwal) in case FIR No. 24 dated 16.01.2011, registered under sections 9(c) of the Control of Narcotic Substances Act, 1997, Police Station Ghallah Mandi, Sahiwal, and on culmination of the trial vide judgment dated 4.6.2012 rendered by the learned Additional Sessions Judge, Sahiwal, they were held guilty for an offence under section 9(c) of the Act ibid and were sentenced to imprisonment for life each with fine of Rs. 300,000/- (Rupees three lacs) each and in case of non-payment of fine, to further undergo two years' S.I. each. Benefit of section 382-B, Cr.P.C. was also extended to them.
3. The petitioners assailed their above-said conviction and sentence before this Court by way of filing Criminal Appeal No. 418 of 2012, which was dismissed by the learned Division Bench of this Court vide judgment dated 27.5.2014. Being aggrieved, both the petitioners challenged the judgment of this Court before the Hon'ble Supreme of Pakistan through Crl. Petition No. 706-L of 2014, wherein leave to appeal has been granted by the apex Court on 12.02.2020. Hence, instant petition.
4. Heard. Record perused.
5. We find it a case which mainly hinges on an order of the august Supreme Court of Pakistan passed on 12.02.2020 in Criminal Petition No. 706-L of 2014 filed by the petitioners against the afore- referred judgment of this Court whereby the appeal filed by the petitioners against their conviction and sentence was dismissed. The apex Court while referring the various contentions of the learned counsel for the petitioners in aforesaid Criminal Petition has granted leave against the judgment of this Court in the following manner:- "Learned counsel for the petitioner vehemently contends that the prosecution case against the petitioners is replete with improvements and contradictions; that the prosecution has iniserably failed to prove the safe custody of recovered contraband in the Malkhana; that in the FIR it is alleged that at the time of arrest of petitioners, 55 packets of Charas were recovered; that Muhammad Tahir Javed, ASI (PWJ) who was Moharrar at that time in his examination in chief did not state that how many sealed parcels were handed over to him by the investigating officer for safe custody in the Malkhana but in his cross-examination, he stated that 55 parcels each were sent to the offices of Chemical Examiner Multan and Lahore; that Muhammad Aslam 1299/C (PW7) in his examination in chief stated that on 13.3.2011 he was handed over one sealed parcel for transmission to the office of Chemical Examiner Multan; that though in his cross-examination, he (PW7) stated that Moharrar handed over to him a plastic shopper containing Charas but he did not state as to how many parcels were in that plastic shopper.
2. The contentions raised need consideration. Leave to appeal is therefore granted in this case to reappraise the entire evidence available on record for safe administration of justice. Office is directed to fix the criminal appeal arising out of this petition immediately on the availability of a three member Bench."
6. There cannot be two opinions about the argument of the learned Additional Prosecutor General that mere grant of leave to appeal did not necessarily mean that the petitioners had become entitled to suspension of their 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), which for the sake of ready reference is reproduced verbatim:- "(2-B) Where a High Court is satisfied that convicted person has been granted Special Leave to Appeal to the Supreme Court against any sentence which it has imposed or maintained, it may if it so thinks fit order that pending the appeal the sentence or order appealed against be suspended, and also, if said person is in confinement, that he be released on bail."
Bare reading of the above-said provision of law manifests that two conditions have been laid down in. the above mentioned section 426(2-B), Cr.P.C. i.e. where this Court is satisfied that a convicted person had been granted special leave to appeal by the Supreme Court of Pakistan and the other if this Court thinks fit that sentence or order appealed against be suspended. Reliance is placed on "Faraz Shaukat v. The State and another" (PLD 2016 Lahore 408) and "Talib Hussain v.
The State" (PLD 2014 Lahore 564), 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 section 426(2B), Cr.P.C. a High Court, pending the appeal before the Supreme Court, may suspend the sentence or order appealed against, and release the convict' on bail."
7. Reverting to the case in hand, from the perusal of leave granting order by the Hon'ble apex Court, prima facie, it appears that leave was granted to reappraise the evidence on the dimension of safe custody of the recovered substance as well as safe transmission of samples of the recovered substance to the office of the Chemical Examiner. Furthermore, improvements and contradictions pointed out in the prosecution case were the factors which were pressed into service by the learned counsel for the petitioners, which persuaded the apex Court to grant leave in the above noted Criminal Petition. All the contentions made would be opened 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 petitioners after having been arrested on 16.1.2011 have 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.
8. For the foregoing reasons, we feel persuaded to allow this petition, which we do accordingly. The sentence of both the petitioners is suspended pending decision of their appeal before the Hon'ble Supreme Court of Pakistan and they shall be released from jail subject to their furnishing bail bonds in the sum of Rs. 5,00,000/- (Rs. five lac only) each with two sureties each in the like amount to the satisfaction of Deputy Registrar (Judi.) of this Bench.