Criminal Miscellaneous No. 2 of 2021 Through this second application under section 426, Cr.P.C., Basharat Ali (applicant/convict) has sought suspension of execution of sentence on merits as well as statutory ground of delay in decision of appeal. First application filed by applicant for suspension of sentence bearing Criminal Misc. No.01/2021 was dismissed as withdrawn on 25.03.2021 for the time being. Applicant has been convicted and sentenced vide impugned judgment dated: 26.01.2021 passed by learned Additional Sessions Judge, Depalpur/trial court in private complaint filed under sections 302, 324, 452, 34, P.P.C. arising out of FIR No.439/2015 registered under sections 302, 324, 34, P.P.C. at Police Station: Hujra Shah Muqeem, Tehsil: Depalpur, District: Okara. The detail of conviction recorded and sentence awarded to the applicant is as under:- Conviction Sentence Under section 302(b), P.P.C."Imprisonment for life" as Tazir. To pay Rs.1,00,000/- under section 544-A Cr.P.C. as compensation to the legal heirs of one of the deceased namely Saeed Ahmad and in case of non-payment, to suffer further period of simple imprisonment for six months.
Under section 337-L(2) To pay. Rs.75000/- as Daman to the injured' Umar Farooq and in case' of non- payment of Daman, he shall be kept in jail until Daman is paid.
Benefit of section 382-B, Cr.P.C. has been extended to the applicant.
2. After hearing learned counsel for the parties, learned Deputy Prosecutor General and going through the impugned judgment, it has been noticed that as per case of prosecution, applicant caused firearm injuries with 44 rifle at right hand, testes and right thigh of Saeed Ahmad (one of the deceased of the case), he also caused firearm injuries at front side of thigh and right knee of Umar Farooq (injured witness of the case); ocular account furnished by prosecution comprising of eye-witnesses including injured witnesses, has been confirmed by the medical evidence. So far as opinion of police in favour of applicant is concerned, suffice it to say that same is not binding and may have a persuasive value which has become irrelevant when aggrieved by said opinion of police, private complaint was filed by complainant and then judicial verdict has been recorded by learned Trial Court regarding guilt of the applicant; in this regard, case of "Nazir Ahmad and another v. The State and others" (PLD 2014 SC 241) can be safely referred. The learned counsel for the applicant could not point out any legal infirmity in the judgment which could support him for suspending the sentence. Therefore, no case for suspension of sentence on merits, has been made out.
3. As far as contention of learned counsel for suspending sentence of the applicant on the ground of delay in decision of appeal is concerned, it is important to mention here that applicant/appellant was convicted vide judgment dated: 26.01.2021 passed by learned Additional Sessions Judge, Depalpur/trial court and he filed appeal before this Court on 03.02.2021.
Undeniably, applicant was tried and convicted as "Juvenile" and it is important to mention here that in Juvenile Justice System Act, 2018, section 6(5) speaks for grant of bail on the ground of delay in "trial" to the juvenile, which is hereby reproduced:- "6(5). Where the Juvenile court is of the opinion that the delay in the trial of a juvenile has not been occasioned by an act or omission of such juvenile or any other person acting on his behalf or in exercise of any right or privilege under any law for the time being in force, such juvenile shall be released on bail if he has been detained for a continuous period exceeding six has months and whose trial not been completed."
However, any such provision has not been provided in said statute for suspension of execution of sentence of the person convicted by Juvenile Court, during pendency of his appeal. It goes without saying that by now it is well settled that when something has not been provided under the statute then court cannot read the same so as to give a different interpretation; in this regard guidance has been sought from the case of "Deputy Director Finance and Administration FATA through Additional Chief Secretary FATA, Peshawar and others v. Dr. Lal Marjan and others" (2022 SCMR 566); relevant portion from the case-law is hereby reproduced:- "The said principle categorically provides that, where the legislature has not provided something in the language of the law, the Court cannot travel beyond its jurisdiction and read something into the law as the same would be ultra vires the powers available to the Court under the Constitution and would constitute an order without jurisdiction. The same would also be against the principle of Trichotomy of Powers upon which the State functions. All three organs of the State have been given specific powers under the law and as such, the said powers cannot be overstepped."
Case of "Munir Hussain and 3 others v. Province of Sindh and others" (2022 SCMR 650) can also be advantageously referred on the subject and its relevant portion is reproduced:- "The High Court lacks jurisdiction or power to create rights which are not provided by the Constitution or a validly enacted law."
4. Obviously, an appeal by a person convicted by Juvenile Court is to be dealt with in accordance with the provisions of the Code of Criminal Procedure, 1898 and Section: 18 of Juvenile Justice System Act, 2018 is crystal clear on the subject and same is hereby reproduced for ready reference:- "18. Appeal.---(1) Any person convicted by a Juvenile Court may prefer an appeal in accordance with the provisions of the Code."
Needless to add at the cost of repetition that when any specific provision is not provided in Juvenile Justice System Act, 2018 for suspension of execution of sentence of the person convicted by a Juvenile Court and his appeal is to be preferred and dealt with in accordance with provisions of the Code of Criminal Procedure, 1898 then recourse is to be made to section 426 of the Code of Criminal Procedure, 1898 for the purpose. Under section 426(1-A)(c), if a convict has been sentenced to imprisonment for life or imprisonment exceeding seven years and his appeal has not been decided within the period of two years of his conviction then his request/pray & for suspension of execution of sentence on the ground of delay in decision of appeal can be considered. Section 426(1-A)(c) of the Code of Criminal Procedure, 1898 is hereby reproduced for ready reference:- "[426(1-A) An Appellate Court shall, except where it is of opinion that the delay in the decision of appeal has been occasioned by an act or omission of the appellant or any other person acting on his behalf, order a convicted person to be released on bail who has been sentenced:- (a)....
(b)....
(c) to imprisonment for life or imprisonment exceeding seven years and whose appeal has not been decided within a period of two years of his conviction. .............."
Since said period has not yet elapsed in this, appeal, therefore, ground of F delay in decision of appeal is also not available to the applicant at this stage. We hold that notwithstanding the juvenility of the applicant/convict, period of two years for considering statutory ground for suspension of his sentence provided in section 426(1-A)(c) shall be unchanged and that the statutory ground for bail of a juvenile during the trial cannot be extended to him after conviction and he will be treated as a convict under the relevant provisions of Code of Criminal Procedure, 1898. It goes without saying that though Juvenile Justice System Ordinance, 2000 and then Juvenile Justice System Act, 2018 were legislated for betterment of juvenile/child yet it has been noticed with concern and pain that said law is more often than not being misused for commission of the heinous offences through juveniles/children, therefore, now it is high time to have narrow/strict interpretation of the Act.
5. In view of what has been discussed above, no case for suspension of execution of sentence of the applicant on merits as well as on ground of delay in decision of appeal is made out, therefore, instant application filed by the applicant is without any substance and same is III hereby dismissed.