This order will dispose of an application under section 426, Cr.P.C. Seeking the suspension of sentence of the petitioner vide judgment dated 25-5-2000 passed by the learned Sessions Judge, Sahiwal in case F.I.R. No, 106 of 1985 dated 15-7-1985 under sections 302/307/34, P.P.C. For causing the death of Abdul Jabbar and murderous assault at Muhammad Shard.
2. Feeling aggrieved the appellants have preferred an appeal which is sub judice before this Court.
3. The learned counsel for the petitioner has urged that the petitioner is innocent and that the motive has been disbelieved, recoveries have been discarded at the trial and that the learned Sessions Judge has based conviction on uncorroborated, interested and inimical evidence, 'which is totally contradicted by medical evidence and that Muhammad Sharif (P.W.7) who claims to be injured witness and on whose testimony Court has passed the sentence against the petitioner for the reason that he bears the stamp of injury and that the injury on the person of Muhammad Sharif is fabricated for the reason that from a distance of only ten feet a stray pellet cannot hit and that, too, at his chest under the skin and at this short distance if he had been fired at the pellet would have gone through and through. Hence entire prosecution story fails on this score and that the petitioner is burdened with having fired at Abdul Jabbar deceased and the fire hit his shoulder and chest while Khushi Muhammad fired from his gun, the fire hit the deceased at his abdomen. Khushi Muhammad against whom the evidence is also the same as against the petitioner has been acquitted and that on the same score petitioner's case is much better than the acquitted accused and testimony of witnesses is indivisible. Moreover, the injuries on the person of the deceased also contradict the ocular account and that the petitioner is an advocate and the case has remained pending for 16 long years. There are fair chances of appeal to succeed and no useful purpose would be served by detaining the petitioner in the lock-up.
2. Learned counsel for the petitioner has relied upon Maqsood v. Ali Muhammad and another 1971 SCM R 657; Abdul Ghaffoor v. Anwarul Hassan and others 1978 SCM R 149; Mosam Khan and 4 others v. Mir Alam Khan PLD 1992 Supreme Court 47; Muhammad Afzal and another v. The State 1994 SCM R 453; Rafaqat Ahmad v. The State 1994 SCM R 1206 and Khalil-ur-Rehman v. Muhammad Afzal and another 1998 SCM R 523.
3. On the other hand, learned counsel for the State and the complainant have submitted that to be an Advocate does not give a licence to kill another person like a desperate person. Learned counsel then read the whole F.I.R. Where the petitioner specifically named, specific role has been attributed to him which hit the deceased and he died and that he acted in very desperate manner, He has been convicted on the charge of murder under section 302, P.P C., which is prima facie proof of the guilt of the petitioner. He has relied upon Muhammad Nawaz v. Muhammad Nawaz alias Naji and 4 others 1997 SCM R 1521 and Farhat Azeem v. Waheed Rasul and others PLD 2000 Supreme Court 18.
4. I have given due consideration to the valuable arguments on both sides and perused the judgment of the trial Court and considered the relevant facts.
5. In the case of Maqsood v. Ali Muhammad and another 1971 SCM R 657, the respondent was 75 years old and was suffering from active arthritis and urinary , infection. He was also reported to be suffering from Hypertension and swollen and painful joints. A Division Bench of this Court suspended and discretion exercised by the High Court was held proper by the Hon'ble Supreme Court ith the observation:- "...Under the proviso to subsection (1) to section 497 a sick or infirm person may be released on bail even where there are reasonable grounds for believing that he has been guilty of an offence punishable with death or transportation for life. It is now well-settled that where a statute itself lays down certain, principles for doing some acts they may be taken as a guideline for doing something of the same nature which is in the discretion of the Court." This precedent is of no help to the petitioner because he is neither old nor a sick person.
6. In the case of Abdul Ghaffar v. Anwarul Hasan and others 1978 SCM R 149 where the counsel for the petitioner had submitted that the High Court had erred in suspending the sentence against the first respondent under section 426 of the Criminal Procedure Code because the sentence passed was for life imprisonment on a conviction for murder. The Hon'ble Supreme Court observed: "... ...The submission is fallacious and involves reading into section 426 a qualification which is not contained in it. The section, in so far as it is relevant, reads:-- "Pending any appeal by a convicted person, the Appellate Court may, for reasons to be recorded by it in writing order that the execution of the sentence or order appealed against be suspended and, also, if he is in confinement, that he be released on bail on his own bond." It was also observed: "There is no ambiguity about the section. The Appellate Court's discretion to grant bail is not fettered or restricted by reference either to the conviction or to the sentence passed against an appellant by the trial Court. But like all discretions vested in the Courts, the discretion in this section has to be exercised judiciously. However. Learned counsel feebly submitted that a contrary view was taken by this Court in Maqsood v. Ali Muhammad and another 1971 SCM R 657. The judgment cited is distinguishable on the facts and further the Court expressly observed that the question of suspending a sentence under section 426 was within the discretion of the Appellate Court, therefore, it refused to interfere with the discretion exercised in the case by the High Court." This precedent is also not helpful to the petitioner.
7. In the case of Muhammad Afzal and another v. The State 1994 SCM R 453 where medical evidence contradicts the allegations made against the petitioners and all other co-accused had already been acquitted and the learned counsel appearing for the State has frankly stated that the position of the injuries as alleged by the learned counsel for the petitioner is supported by the record, particularly the medical report and the sentence of the petitioners was suspended.
8. There is no such statement of the learned counsel for the State. As such, this ruling is also of no help to the petitioner.
9. In the case of Rafaqat Ahmad v. The State 1994 SCM R 1206 where request for suspension of sentence on the ground that the petitioner was studying in Law and he remained on bail during the proceedings before the High Court and the High Court upheld the conviction and observed that the petitioner had exceeded the right of self-defence, leave to appeal was granted by the Hon'ble Supreme Court and the sentence was suspended. This precedent is also of no help as there is no plea of exercise of the right of private defence.
10. In the case of Muhammad Nawaz v. Muhammad Nawaz alias Naji and 4 others 1997 SCM R 1521 where a Division Bench of the Lahore High Court had suspended the sentence saying that no injury was attributed to the respondents and they were alleged to have ineffectively fired during the incident. The Hon'ble Supreme Court observed, the respondents were convicted and sentenced on the charge of murder. The High Court had no justification to suspend their sentence and the order of suspending the sentence of the respondents was recalled.,
11. In the case of Farhat Azeem v. Waheed Rasul and others PLD 2000 Supreme Court 18 where the convicted accused had filed an appeal in the High Court and their sentence was suspended and it was contended before the Hon'ble Supreme Court on behalf of the complainant that the facts and circumstances of the case did not justify grant of bail to the respondents, in that they had remained absconding after the occurrence for a considerable period; the evidence led against them at the trial about the conspiracy had been believed by the learned trial Court and that the learned High Court erred in touching the merits of the case in suspending their sentence though the precedents of this Court were cited before the learned High Court disapproving the grant of bail to the accused convicted on the capital charge but the same were neither considered nor followed. It was observed by the Hon'ble Supreme Court:-- "The binding effect of the decisions of the Supreme Court was considered in the case of Syed Sajjad Hussain v. Secretary, Establishment Division, Cabinet Secretary, Islamabad and 2 others 1996 SCM R 284 and it was held that the law declared by the Supreme Court would bind all the Courts, Tribunals and also the bureaucratic set-up in Pakistan. Ataur Rehman v. The State PLD 1967 SC 23 is also to the same effect. In the Province of the Punjab through Secretary, Health Department v. Dr. S. Muhammad Zafar Bukhari PLD 1997 SC 351 this Court had observed that the law declared by the Supreme Court by virtue of Article 189 of the Constitution of the Islamic Republic of Pakistan, 1973, is binding on all the Courts and authorities in Pakistan and the judgment passed by the High Court, contrary to the dictum laid down by the Supreme Court would be a judgment per incuriam, and that one cannot be found guilty of disobedience of such an order and cannot be got implemented by invoking power of contempt of the Court. Ashiq Hussain alias Muhammad Ashraf v. The State PLD 1994 SC 879 also emphasises the binding nature of the decision of the Supreme Court and strongly depreciates the tendency on the part of the Courts to ignore judgments of the superior Courts when cited before them. The relevant observations are to the following effect:- Before parting with the judgment we propose to remind all other Courts in Pakistan that under Article 199 of the Constitution of the Islamic Republic of Pakistan, decision of the Supreme Court enunciating principles of law is binding on them. By our experience we have noted tendency on the part of the Magistrate/Assistant Commissioners/Additional District Judges/District Judges to ignore the judgments of the superior Courts when cited before them. They would not even read the citation and would give the impression as if the law laid down by the Supreme Court/High Courts is not meant for them. They often tell the Advocates to produce the law books before the superior Courts as and when the matter reached there. This treatment of the judgments of the superior Courts and attitude of the Presitling Officers is contemptuous, contumacious and also amounts to misconduct. By this judgment we intend to strike a note of warning to the subordinate Courts in the country that they are legally bound to follow the principles of law enunciated by the Supreme Court and if they do not follow it then serious view of the matter can be taken against the delinquent as and when the misconduct comes or is brought to the notice of this Court' . Sakhi Muhammad and another v. Capital Development Authority, Islamabad PLD 1991 SC 777 also enunciates the above proposition wherein it was observed that all Courts subordinate to the Supreme Court and all executive and quasi-judicial authorities are obliged by virtue of the Constitution to apply the rule laid down by the Supreme Court in the cases coming up before them for decision.
The rule of interpretation of the law laid down by the High Courts and the Supreme Court in criminal cases is that when two varying precedents are available on a particular point, the one most relevant and applicable to the facts and circumstances of the case and delivered by a larger Bench should be followed. In this context, we may advantageously refer to Sikandar A. Karim v. The State 1995 SCM R 387 wherein it was laid down that:-- "The decision of Supreme Court, in so far it decides a question of law or is based upon or enunciates a principle of law is binding on all Courts in Pakistan. The decisions on questions of laws or enunciation of principles of law are the generalisation of such questions and circumstances of any case. The facts and circumstances of each case are peculiar to that case and, therefore, provide no guidance in the other cases. On the other hand, the generalised principles of law or generalised enunciation of principles of law govern all those which fall within such generalisation." We do not think that there is hardly a need for reiteration that the Supreme Court is the highest judicial forum in the country, it has to interpret the law while hearing appeals from the judgments of the High Court and the subordinate judiciary. Invariably such matters are considered by more than one Judges having long experience and thrash out the proposition brought before them in the light of the chain of judgments rendered on the controversy in issue and ensure that continuity of law is maintained as it is essential for good judicial administration.
The subordinate judiciary should always give its utmost respect, regard and consideration to the judgments, decrees, directions and Order of the Supreme Court, for, it is necessary apart from the binding nature of the B same for maintaining discipline in all ranks of the judiciary. When the Supreme Court itself gives due consideration to the earlier decisions rendered by it we wonder why the subordinate judiciary in Pakistan should turn a deaf ear to the judgments, awards,. Findings or observations of the Supreme Court. The Courts and authorities subordinate to the Supreme Court are under legal obligation to follow the law laid down by it, and if they consider that the case-law cited before them is not relevant or applicable to the facts and circumstances of the case they are dealing with, then they should distinguish it with reasons showing application of mind by them.
This-exercise would enable the party citing the case-law to understand as to why the precedents relied upon by it were not followed. Now coming to the legal position in respect of suspension of sentence, we may refer to Bahar Khan v. The State 1969 SCM R 81 wherein it was observed that "there is no force in the contention that the powers conferred on the Appellate Court under -section 426 to suspend sentence pending the hearing of the appeal are wider than the powers to release on bail under sections 497 and 498 of the Code. A person accused of a non-bailable offence may not be released on bail if there appears reasonable grounds for believing that he has been guilty of an offence punishable with death or transportation for life". It was concluded that unless strong grounds are made to appear that conviction is not liable to be sustained, bail under section 426 will not be granted. To the same effect are the observations in Abdullah Khan v. Karamdad 1968 SCM R 1064; Maqsood v. Ali Muhammad and another 1971 SCM R 657; Abdul Ghafoor v. Anwarul Hassan and others 1978 SCM R 149; Faqir Muhammad v. Akbar 1979 SCM R 276 and Haji Mir Aftab v. The State 1979 SCM R 320.
The discretion has to be exercised judiciously by considering the relevant facts without commenting on the merit of the case. If the contention raised requires consideration of the merits, the Appellate Court would refrain from entertaining such contentions. The Court cannot enter into a reappraisal of the evidence which should be considered at the time of hearing of the appeal. But, where on perusal of the facts and judgment impugned, the Court comes to the conclusion that the judgment suffers from any legal error, it would be justified to suspend the sentence and grant the bail. In this regard the reasonable and legal views expressed by the trial Court should be given due consideration and weight, but every effort should be made to ensure that neither the evidence is reappraised nor the merits of the case are discussed. Muhammad Ashraf v. The State 1971 SCM R 183; Noor Abdullah and another v. The State 1981 SCM R 859 and Jamshed Azam v. The State 1990 SCM R 1393 also enunciate the above legal principle. Muhammad Nawaz v. Muhammad Na.Waz alias Naji and 4 others 1997 SCM R 1521 is another judgment on the point of suspension of sentence, and it was observed in this case that the accused-respondents having been convicted and sentenced on the charge of murder, High Court had no justification in law to suspend their sentences in the peculiar circumstances of the said case. It is a settled proposition of law that while deciding the bail matter the Court has to refrain from making such observations, which may prejudice the case of either party: "Sentence awarded by the. Trial Court should not ordinarily be suspended by the Appellate Court unless strong grounds are made out to appear that conviction under the offence in question or any other allied offence is not liable to be sustained, but it should not be taken as a total prohibition on the power of the Appellate Court to suspend the sentence and in suitable cases it may exercise the power on the basis of the principles laid down in proviso to subsection (1) to section 497, Cr.P.C. As held by this Court in Maqsood v. Ali Muhammad and another 1971 SCM R 657. It was further observed in the said case that 'it is now well-settled that where a statute itself lays down certain principles for doing some acts they may be taken as a guideline for doing something of the same nature which is in the discretion of the Court' ."
12. I have given due consideration to the valuable arguments and relevant facts. The contentions raised by the learned counsel for the petitioner require consideration of the merits and reappraisal of the evidence, as such, I do not entertain the contentions. The petition is dismissed.