Order Sheet

IN THE HIGH COURT OF SINDH, BENCH AT SUKKUR

C. P. No. D – 636 of 2019

Before:

Mr. Justice Adnan-ul-Karim Memon

Mr. Justice Yousuf Ali Sayeed

Petitioner : Shah Muhammad Bhelar

Through Mr. Haji Shamsuddin Rajpar, Advocate

Respondents 1 & 2 : The State

Through Mr. Khalil Maitlo, Assistant prosecutor General Sindh

Respondent No.4 : Razziq Dino

Through Mr. Shabir Ali Bozdar, Advocate

Date of hearing : 23.07.2020.

Date of order : 23.07.2020.

O R D E R

ADNAN-UL-KARIM MEMON, J. – Through this petition, the petitioner has prayed for suspending the operation of the judgment dated 31.08.2018, passed by the Special Judge, Anti-Terrorism Court, Khairpur, whereby he convicted the petitioner for offences punishable under Section 506/2 PPC read with Section 7 of Anti-Terrorism Act. 1997 and sentenced him to suffer R.I. for seven years and to pay fine of Rs.30, 000/-, on both counts both the sentences were ordered to run concurrently.

2. It has been argued by the learned counsel for the petitioner\appellant that the trial Court has not properly appreciated the evidence brought on record in in his favour and has convicted the petitioner/appellant for the aforesaid offences; that the petitioner has served out substantial sentence i.e. one year eleven months and twenty one days, but the hearing of appeal is not in sight in near future. It is contended that the learned trial court failed to appreciate that the allegations leveled against the appellant were of issuing threats of dire consequences, but he did not overact for committing the offence under section 506/II P.P.C, which factum requires detail reappraisal of evidence by this court at the time of hearing the main appeal.it is his further case that both the sentences were ordered to run concurrently i.e. seven years and the petitioner/appellant has been incarcerated in jail without hearing of appeal. It is further contended that there is a long chain of authorities where the superior courts have always jealously guarded and protected the liberty of citizens in the matter of grant of bail and in all such cases assistance, aid and guidance has always been taken from the provision of section 497, read with section 426 Cr.P.C. being considered the mother provision of law, regulating the grant or refusal of bail/suspending the sentences of accused/convicted, as the said provisions of law have successfully undergone the test of time, since inception/incorporation in the Code. He next argued that the Liberty of a citizen has been elevated to the high pedestal by the provisions of Articles 7 and 9 of the Constitution of 1973, which inter alia provides that no citizen shall be deprived of his life and/or liberty, save in accordance with law, but in the present case, appeal has not been heard since its admission for regular hearing; that to have a timely hearing of appeal, is the fundamental right of appellant.

3. This Court has carefully gone through the statement of the complainant Raziqdino who deposed that the alleged victim was not subjected to rape by the present petitioner/appellant, even he did not disclose his name in his deposition; The prosecution witnesses have only stated in their depositions that the present appellant only extended threats of dire consequences.

4. We are of the tentative view that it is yet to be seen as to whether the trial Court appreciated the deposition of complainant and statement of appellant recorded under Section 342 Cr.P.C with regard to factum of issuing threats of dire consequences to the Complainant party. As per prosecution, the present petitioner\appellant has been convicted for offences under Section 506(II) of P.P.C read with Section 7 of ATA and has been awarded jail sentence of 7 years of R.I. on both counts for which this Court has to appreciate the factual as well as legal aspect of the case, when the matter is proceeded on merit.

5. Learned Counsel for the Complainant as well as learned Deputy Prosecutor General Sindh recorded their no objection to the suspension of the petitioners’ sentence under the circumstances of the case.

6. In view of the forgoing and without otherwise expressing any opinion on the merits of the matter, consequently, the captioned petition stands allowed and the sentence awarded to the appellant by the learned trial Court is suspended. The petitioner/appellant, namely Shah Muhammad, son of Muhammad Adhal, be released on bail, subject to his furnishing solvent surety in the sum of Rs.100,000/- (Rupees One Hundred Thousand only) and P.R Bond in the like amount to the satisfaction of Additional Registrar of this Court.

J U D G E