The facts of the case are that the present petitioner alongwith one Sher Afzal co-accused filed an appeal before this Court bearing Criminal Appeal No,487 of 2001 which was finally heard by this Court on 6-8-2002 in which the sentence of the petitioner was reduced from section 302, P.P.C to section 308, P.P.C. i,e, imprisonment for life to seven years' W.I. With the further direction to pay Diyat amount as required under section 331, P.P.C. Either in three installments or in 36 installments as provided by the law while the sentence of the co-accused was maintained as directed by the learned trial Court.
2. Learned counsel for the petitioner submits that petitioner alongwithher co-accused has filed Criminal Petition No,72-L of 2002 for Special Leave to Appeal titled as Mst.Nawatizadi and others v.
The State before the Hon'ble Supreme Court of Pakistan which came up for hearing before two learned Judges of Hon'ble Supreme Court of Pakistan and following order was passed "Re- appraisal of evidence is warranted for which leave to appeal is granted". He submits that according to section 426(2-B), Cr.P.C. This Court has vast powers to suspend the sentence 'of the accused-appellant, who has been granted leave to appear by the Apex Court. He has also relied upon PLD 1955 Sindh 68. Where their Lordships of the Sindh High Court refused to suspend the sentence of the accused because no Special Leave to Appeal was granted. He has relied upon AIR 1940 Lahore 203 and AIR 1945 P.C.
94. In pursuant of order and direction passed in this judgment an amendment was made through Act 4 of 1946, that in 1951 an Act 26 was passed in which the following amendment in subsection (2-B) of section 426, Cr.P.C. Which is reproduced below:-- "(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". Learned counsel for the petitioner submits that this is fit case in which the sentence of the petitioner should be suspended.
3. On the other hand, learned Additional Advocate-General though concedes the submission made by the learned counsel for the petitioner but submits that section 426(2-B), Cr.P.C. Is very much clear but, now the matter is pending before the Hon'ble Supreme Court of Pakistan so this petition should be dismissed.
4. On the other hand, learned counsel for the complainant submits that according to Article 159 of the Constitution of Islamic Republic of Pakistan, it was mentioned therein that unless the sentence is awarded in an appeal by this Court and leave to appeal has been filed before the Hon'ble Supreme Court of Pakistan the sentence cannot be suspended. He has relied upon AIR 1960 Andra Pradesh 622.
5. I have heard learned counsel for the parties and have also gone through section 426(2-B), Cr.P.C. Mentioned above. 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 to the Supreme Court of Pakistan. Now that condition has been fulfilled by the present petitioner and the other if this Court thinks fit order that pending the appeal the sentence or order appealed against be suspended. After going through these two conditions, I am fully satisfied that petitioner has fulfilled the above two conditions i,e, that she has tiled appeal before the Hon'ble Supreme Court of Pakistan in which leave has been granted and she is a woman and her case is also covered by the first proviso of section 497(1), Cr.P.C. Section 426, Cr.P.C. Is guided by the first proviso of section 497(1), Cr.P.C., even otherwise, as the petitioner is a woman, I am of the considered opinion that her case is definitely covered by first proviso of section 497(1). Cr.P.C. So her sentence is suspended subject to furnishing bail bonds to the tune of Rs,50,000 (Fifty thousand) with two sureties in the like-amount to the satisfaction of D.R. (Judicial) of this Court. C.M. Stands disposed of.