IN THE HIGH COURT OF SINDH, BENCH AT SUKKUR
Crl. Appeal No. S- 60 of 2023.
1. For hearing of MA No. 2833/2023.
2. For hearing of main case.
O R D E R.
04-09-2023.
Mr. Shabbir Ali Bozdar, advocate for the appellant No 1 and 3.
Mr. Qurban Ali Malano advocate for appellant No 2
Mr. Mehfooz Ahmed Awan, advocat0065 for complainant.
Syed Sardar Ali Shah Rizvi, Additional P.G for the State.
Through this application, MA No. 2833/2023, filed under section 426 Cr. P.C, applicants namely Faqeer Muhammad, Lal Bakhsh and Jamal Faqeer, seek suspension of their sentence on the ground that the punishment awarded to them is up to five years, which is relatively short, and the disposal of the main appeal will require a significant amount of time. Therefore, the learned counsels are requesting bail while suspending the sentence awarded to them by the trial court. It is argued that there has been a significant delay of approximately four days in the registration of the First Information Report. Furthermore, the appellants were on bail during the trial. Additionally, two investigating officers have declared the appellants as innocent, and their reports have not been challenged. The role of appellant Faqeer Muhammad is portrayed as one of instigation, while the role of ineffective firing was attributed to the appellant Lal Bux and the main role of causing injury to the injured was assigned to the appellant Jamal Faqeer. It is argued that the charge is defective, as it does not contain descriptions regarding the weapons used in the commission of the offence. Additionally, discrepancies are highlighted between the location of the incident stated in the FIR, as the complainant's house in village Gulab Khan Shar, and the place of the incident mentioned in the charge as Gill Colony. Furthermore, it is pointed out that there is a conflict between the ocular and the medical evidence, as the complainant claims that the accused fired from the front side, whereas the medical certificate indicates that the injured sustained injuries from the back side. Learned counsel for the appellants in support of his contentions has relied upon the cases reported as 1999 SCMR 2589, 2007 P. Cr. L.J 1035, 2012 YLR 560, 2017 YLR note 88.
2 . On the other hand, learned counsel for the complainant vehemently opposed the suspension of sentence on the ground that the learned trial Court, after appreciating the evidence, has rightly convicted the appellants; hence, they are not entitled to suspension of their sentence. He further submits that according to section 426 of the Criminal Procedure Code, if the appellant is sentenced to a term of imprisonment for 3 to 7 years and their appeal remains pending for more than one year, only then the conviction and sentence of the appellants be suspended, and not otherwise.
3. Learned Additional Prosecutor General Sindh supported the arguments advanced by learned counsel for the complainant and prayed that the short sentence is no ground for suspension of sentence.
4. Heard arguments of learned counsel for the parties and gone through the material available on record.
5. From the perusal of the record, it appears that appellants were convicted for causing firearm injuries to injured Zulfiqar Ali with intention to commit his murder on the instigation of accused Faqeer Muhammad under section 324 R/W section 114 PPC and sentenced to suffer R.I for 05 years and to pay fine of Rs. 100,000/- by each accused to victim Zulfiquar Ali, in case of failure, they shall suffer S.I for one month more. Appellant Jamal Faqeer was also convicted for causing injuries to injured Zulfiqar Ali and sentenced to suffer R.I. for 05 years and to pay Arsh, which is equivalent to one-half of the Diyat amount. In case of failure to pay the Arsh amount, he shall remain in jail till payment of the Arsh amount. Appellant Jamal Faqeer was also convicted U/S 337A(iii) PPC of two counts for causing two injuries fallen under the said penal section and sentenced to suffer R.I for 05 years of two counts and to pay Arsh, which shall pay 10% of the Diyat amount on the two counts as well. The benefit of section 382 Cr. P.C was also awarded to them.
6. The provisions outlined in section 426(1) bear resemblance to those under section 497 of the Criminal Procedure Code. In both instances, the sentence or detention is temporarily halted until the appeal or trial is heard and the convicted individual or accused is granted bail. The key distinction lies in the fact that in the former case, the individual is already a convicted offender, having been found guilty, whereas in the latter case, the individual has only been charged and is awaiting trial to determine guilt. It is worth noting that the power to grant bail in both above-cited sections is discretionary in nature. However, the discretion of Appellate Courts to grant bail under section 426 of the Criminal Procedure Code is not limited or constrained by the appellants' conviction or the sentence imposed by the trial court. It is an established principle of law that discretionary power conferred upon the courts must be exercised in a judicious manner. Reference in this regard can be made on the case of Altaf Hussain Shah v. The State (1986 PCr.LJ 2202) and to the Case of Abdul Ghaffar v. Anwar-ul-Hassan (1978 SCMR 149). Similarly, in the case of Abdullah Khan v. Karam Dad Khan and another (1986 SCMR 1064), Faqir Muhammad v. Akbar (1979 SCMR 270). Further reference in this regard can also be made to the case of Haji Mir Aftab v. The State (1979 SCMR 320), Maqsood v. Ali Muhammad and another (1971 SCMR 657), Hazrat Ullah v. The State (1979 PCr.L.J 1104), Maqsood Ahmed v. State (2005 YLR 1049).
7. It is settled principle of law that delving too deeply into the examination of evidence is to be avoided while considering an application under Section 426 of the Criminal Procedure Code. The tentative material available on the record suggests that the role of appellant Faqeer Muhammad is portrayed as one of instigation, while the role of ineffective firing was attributed to the appellant Lal Bux, whereas the role of making straight fire upon the injured Zulfiqar is attributed to appellant Jamal Faqeer that disentitled him for discretionary relief.
8. In view of the above, taking guidelines from the above case laws, the conviction and sentences awarded to the appellants Faqeer Muhammad and Lal Bakhsh are suspended, whereas the suspension of the sentence to appellant Jamal Faqeer is declined. Consequently, application bearing No. 2833/2023 is partly allowed. However, in case the above appeal is not decided within one year, the appellant Jamal Faqeer may file a fresh application for the suspension of sentence on the ground of statutory delay as enunciated under section 426 1 (b) Cr.P.C. The appellants Faqeer Muhammad son of Allah Warrayo and Lal Bakhsh son of Kando are directed to be released on bail subject to furnishing solvent surety in the sum of Rs. 100,000/- each and P.R bond in the like amount to the satisfaction of Additional Registrar of this Court.
To come up again on 02-10-2023.
J U D G E
Nasim/P.A