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Petitioner: MUHAMMAD ASLAM VS Respondent: THE STATE
1997 P Cr
1997 P Cr. L J 1258
[Lahore]
Before Ch. Khurshid Ahmad, J
MUHAMMAD ASLAM---Petitioner
Versus
THE STATE---Respondent
Criminal Miscellaneous No. 1 of 1995 in Criminal Appeal No.297 of 1993, decided on 23rd April, 1995.
(a) Criminal Procedure Code (V of 1898)---
----S. 426(1-A)(c)---Penal Code (XLV of 1860), Ss.302/34 & 307/34-- Suspension of sentence---Appeal filed by accused against their convictions and sentences had not been decided by High Court within two years of their conviction---Refusal to suspend the sentence on statutory ground was an exception and no reason was available to disallow the suspension of accused's sentence---Sentence of accused was consequently suspended and they were released on bail accordingly.
Ahmad Subhan alias Bana and another v. The State 1994 SCMR 1176 and Muhammad Munir and 4 others v. The State 1984 PCr.LJ 581 distinguished.
(b) Criminal Procedure Code (V of 1898)---
----Ss. 426(1) & 426(1-A)---Suspension of sentence---Nature of proceedings-- Provisions of S. 426(1), Cr.P.C. are discretionary where the discretion has to be exercised by recording the reasons thereof, whereas the provisions of S. 426(1-A), Cr.P.C. are mandatory where suspension of sentence is a rule and its refusal an exception which is required by law to be reasoned in writing.
Ghaus Muhammad Chaudhry for Petitioner. Ch. Muhammad Abdus Saleem, Bar-at-Law for the Complainant. Shahbaz Saeed Sajid for the State.
ORDER
The petitioners were convicted under sections 302/34 and 307/34, P.P.C. by Additional Sessions Judge, Sheikhupura on 9-3-1993 and apart from various sentences of fine and imprisonments in case of default thereof and compensations under section 544-A, Cr.P.C., the petitioners were sentenced to life imprisonment under section 302/34 and to four years R.I. under section 307/34, P.P.C.
Both the petitioners were given benefit under section 382-B, Cr.P.C.
2. Petition has been made for suspension of sentence under section 426 (1-A)(c) on statutory grounds as according to the learned counsel for the petitioners the appeal of the petitioners has not been decided within a period of two years of their conviction.
3. The learned counsel appearing on behalf of the complainant and the learned counsel for the State have opposed the suspension of sentence on the ground that the petitioners were attributed specific injuries and roles directly and that they were not entitled to the relief under section 426, Cr.P.C. as according to them, the suspension was not a rule in such cases. Reliance has been placed on Ahmad Subhan alias Bana and another v. The State 1994 SCMR 1176 and Muhammad Munir and 4 others v. The State 1984 PCr.LJ 581.
4. So far as Ahmad Subhan's case is concerned the suspension of sentence in that case was prayed for under subsection (1) of section 426, Cr.P.C. and their Lordships in the Supreme Court were pleased to disallow the petition.
5. In Muhammad Munir and 4 others case the suspension was prayed under section 426(1-A)(c), Cr.P.C. and Mr. Justice Sardar Muhammad Dogar (as he then was) refused to grant suspension. To draw a clear line of difference between sections 426(1) and 426(1-A) it is clear line of difference between sections 426 (1) and 426(1-A) it is appropriate that the texts of both the subsections be reproduced:--
"426 Suspension of sentence pending appeals---Release of appellant on bail---(1) 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 or on his own bond.
(1-A) An Appellate Court shall, unless for reason to be recorded in writing it otherwise directs, order a convicted person to be released on bail who has been sentenced--
(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. "
6. In cases under subsection (1) it was the discretion of the Court, as the word "may" sufficiently indicates, to order the suspension of the execution of sentence and said discretion was to be exercised by recording the reasons thereof in writing whereas the word "shall" in subsection (1-A) is mandatory. The words, "unless for reason to be recorded in writing, it otherwise directs",: sufficiently indicate that the Appellate Court shall order a convicted person to be released on bail who has been sentenced:--
"1-A(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. "
The import of the reading of subsection (1-A) of section 426, Cr.P.C. does not make it mandatory for the Court to record in writing the reasons for allowing the suspension of execution of sentence. It is a rule to suspend the execution of sentence in cases covered by clauses (a), (b) and (c) thereof. The refusal was an exception and the exception was required by the law' to be reasoned in writing and, as such, Muhammad Munir's case was of no relevance, keeping in view the very clear dictum of law laid down by the Legislature. This is a Court of law and was under an obligation to see that the law was implemented.
7. The learned counsel for the complainant and for the State have given me no reasons for making it a case of exception. There is no reason for me to disallow the suspension. The petition is, therefore, allowed.
8. The execution of the sentence passed against the petitioners by Additional Sessions Judge, Sheikhupura, on 9-3-1993 is suspended. The petitioners shall be released on bail subject to their furnishing bail bonds in the sum of Rs.50,000 with two sureties each in the like amount to the satisfaction of A.C./Duty Magistrate, Sheikhupura I.
N.H.Q./M-2598/L Sentence suspended.