PLJ 2008
Present: Mian Muhammad Najam-uz-Zaman & Ijaz Ahmad Chaudhry, JJ.
ALLAH DIN--Petitioner
versus
Writ Petition No. 12332 of 2006, heard on 17.10.2007.
Bail--
----Effect of delay in trial--Held: Inordinate delay in prosecution of a criminal case amounts to abuse of process of law/Court and in such like situation accused/convict earns the right of bail. [P. 576] A
Anti-Terrorism Act, 1997 (XXVII of 1997)—
----Ss. 25(8) & (5)--Constitution of
[Pp. 576 & 577] B
Anti-Terrorism Act, 1997 (XXVII of 1997)--
----S. 25(8)--Suspension of sentence during pendency of appeal--Bar--Held: Provision of S. 25(8) of Anti-Terrorism Act, 1997 is harsh in nature and contrary to the principles of natural justice--High Court recommended for its suitable amendment in the legislation. [P. 577] C
Anti-Terrorism Act, 1997 (XXVII of 1997)—
----S. 7(h)--Constitution of
[P. 577] D & E
Anti-Terrorism Act, 1997 (XXVII of 1997)—
----Ss. 6 & 7--
[P. 578] F & G
Anti-Terrorism Act, 1997 (XXVII of 1997)—
----Ss. 6 & 7--
Anti-Terrorism Act, 1997 (XXVII of 1997)--
----S. 7(b)--
1991 SCMR 599; 1992 SCMR 2192; PLJ 2000 Lah. 2070; PLD 2003 SC 668; PLJ 2001 SC 817 & 2004 SCMR 12, ref.
Mr. Muhammad Amjad Perviaz, Advocate for Petitioner.
Mr. Sarfraz Ali Khan, A.A.G. for State.
Date of hearing: 17.10.2007.
Judgment
Mian Muhammad Najam-uz-Zaman, J.--This judgment will dispose of W.P. No. 12332/2006 filed by Allah Din, W.P. No. 3076/2007 filed by Zafar Iqbal, W.P. No. 3947/2007 filed by Irfan, W.P.
No. 3618/2007 filed by Salman and W.P. No. 3338/2007 filed by Muhammad Sadiq and Shahzad, because one and the same law point is involved. Through these Constitutional petitions, prayer has been for suspension of sentence awarded by the Special Judges, Anti-Terrorism Courts and release of petitioners on bail because under Section 25 (8) of Anti-Terrorism Act, 1997, the High Court has been restrained from suspending the sentence during the pendency of appeal.
2. Learned counsel representing Allah Din petitioner in W.P. No. 12332/2006 submits that in the past as well many legislations have been made to curtail the power/authority of superior Courts qua the grant of bail to the accused during the investigation or trial and to the convict after his conviction by the trial Court while suspending the sentence. In support of his arguments, learned counsel has referred Section 10 of Offences in Respect of Banks (Special Courts) Ordinance (IX of 1984) and Section 7 of Suppression of Terrorist Activities (Special Courts) Act XV of 1975 and submits that both said sections are peri materia and they say that no Court shall have the authority to revise such sentence, or to make any order under Section 426 or Section 497 or Section 498 PPC or have any jurisdiction of any kind in respect of any proceedings of a Special Court. Submits that both the said sections were examined by the august Supreme Court in case of Allied Bank Ltd. Vs. Khalid Farooq (1991 SCMR 599) and their lordships observed that High Court has the power to grant bail to an accused during the pendency of investigation in respect of offences registered under the ibid Ordinance but the appellate Court has no power to suspend the sentence or release the accused on bail pending the final determination of appeal however question with regard to the power of High Court under Section 561-A Cr.P.C. to release the convict during the pendency of his appeal in exceptional cases as well as the authority of High Court under Sections 435 and 439 Cr.P.C to check the legality or propriety of the findings of the subordinate Court especially in view of such embargo were not answered and the matter was left open for answering the same in appropriate case. Learned counsel while relying on case titled The State Vs. Syed Qaim Ali Shah (1992 SCMR 2192) submits that the authority of High Court qua the grant of bail and suspending of sentence during the pendency of appeal against the judgment of Special Court constituted under the Suppression of Terrorist Activities, Act, 1975, also came into consideration and their lordships observed that under Section 561-A Cr.P.C., the High Court has the power to press into service Section 497 Cr.P.C. with its provisos during the pendency of the trial before the Special Court and during the pendency of the appeal in cases of hardship. It was observed that under Section 561-A Cr.P.C. in spite of bar in the statute sentence could be suspended where appeal of a convict remained pending for number of years either on account of delaying tactics on the part of prosecution agency or because of the heavy workload of the Court as well as in case of serious kind of illness of the convict who could not be treated in the jail hospital. Learned counsel submits that qua the grant of relief to the deserving/aggrieved person the legislature while drafting National Accountability Ordinance-XVII of 1999 vide Section 9 (b) in order to curtail the jurisdiction of the superior Courts qua the grant of relief by way of granting bail either during the trial or during the pendency of appeal while adding Sections 426,491,497 and 498 Cr.P.C. Section 561-A Cr.P.C. has also been added saying therein that notwithstanding any thing contained in these sections no Court shall have the jurisdiction to grant bail to any person accused of any offence under the Ordinance. Submits that the said Ordinance also came under judicial review in case titled Anwar Saifallah Khan Ex. Federal Minister Vs. State and 4 others {PLJ 2000 Lahore 2070 (FB)} and it was observed that though the Courts have been debarred from exercising the jurisdiction through Sections 426, 491, 497, 498 and 561-A of Cr.P.C., but under Article 199 of the Constitution of Islamic Republic of Pakistan, the Courts have the jurisdiction to grant bail to an aggrieved person. Submits that the legality of the said Ordinance i.e. National Accountability Ordinance-XVII of 1999 also came under consideration before the Apex Court of this country in case titled Khan Asfandyar Wali and others Vs. Federation of Pakistan through Cabinet Division Islamabad and others (PLJ 2001 SC 817) and their lordships after examining all pros and cons of the Ordinance gave the findings that it is well settled that the superior Courts have the power to grant bail under Article 199 of the Constitution, independent of any statutory source of jurisdiction such as Section 497 Cr.P.C, and Section 9(b) of NAB Ordinance to that extent is ultra vires the Constitution. Learned counsel also referred to case titled Abdul Aziz Khan Niazi Vs. The State through Chairman, NAB, Islamabad (PLD 2003 Supreme Court 668) in support of his arguments and submits that the superior Courts have the authority/power to grant bail to a deserving person because of Article 199 of the Constitution irrespective of the embargo by a specific statute.
In the light of said settled proposition of law, it is argued that though under Section 25 (8) of Anti-Terrorism Act, 1997, the High Court cannot suspend the sentence during the pendency of appeal but since the legislation is subordinate to the Constitution, thus under Article 199 of the Constitution when the Court is satisfied that it is a case of corum non judice, or no case is made out for conviction, or there is inordinate delay in disposal of appeal and when the accused/convict is suffering from ailment which could not be treated in the jail hospital sentence could be suspended.
On the factual aspect of the case, learned counsel submits that bare perusal of the FIR reveals that the jurisdiction of Special Court is not attracted; petitioner has been convicted and sentenced under Section 7(h) of the Act but there is no allegation against him that of using fire arm during the occurrence nor occurrence had taken place at any place of worship, thus conviction and sentence of the petitioner could be suspended.
3. Learned counsel representing Zafar Iqbal in W.P. No. 3076/2007 submits that the theme of Anti-Terrorism Act, 1997 is to decide the cases expeditiously and the word "shall" used in sub-section (5) of Section 25 of Anti-Terrorism Act, 1997 has made it compulsory to all the appellate Courts to decide the appeal within seven days because of the bar contained in sub-section (8) of Section 25 of the Act. Learned counsel further submits that the bar find mentioned in sub-section (8) of Section 25 of the Act could not be treated as absolute bar when the appeal, is not decided within the stipulated period. Submits that the time limit fixed for disposal of the appeal is mandatory and if the appeal is not decided within the said period then automatically the bar upon the jurisdiction of the appellate Court to release the convict on bail during the pendency of appeal would be weakened extending the jurisdiction to the appellate Court to suspend the sentence in appropriate cases.
On the factual aspect of the case, learned counsel submits that there is no sufficient evidence on the record to show the involvement of the petitioner for the commission of offence failing under Section 365-A PPC. Learned counsel submits that the entire case of the prosecution against the petitioner is that he remained present at the place where Waheed-ud-Din abductee was kept in illegal confinement and that he was arrested from that place. Submits that there is no evidence against the petitioner qua abduction or receiving of ransom money nor any incriminating article was recovered from him.
4. Learned counsel representing petitioners in W.P. No. 3338/2007 has adopted the arguments of learned counsel for the petitioner in W.P. No. 12332/2006 on the law point involved. With regard to the factual aspect, learned counsel submits that during the investigation nothing was recovered from the petitioners; they have been acquitted from the capital charge i.e. under Section 365-A PPC but convicted and sentenced under Section 386 PPC and there is no evidence on record to show that they had ever used criminal force during the occurrence in order to attract the provisions of said section.
5. Learned counsel appearing in W.P. No. 3947/2007 and W.P. No. 3618/2007 have also adopted the arguments on the law point involved as addressed by learned counsel in W.P. No. 12332/2006. On the factual aspect of the case, learned counsel submit that it is a case of short sentence; petitioners have already undergone major portion of their sentence and the possibility of hearing of their appeal in the near future is not within sight; none of the petitioners caused any injury to the prosecution witnesses and that they have been involved in this case with mala fide intention by the investigating agency.
6. Learned law officer has also relied on case titled Amjad Hassan Gurchani Vs. Sajjad Haider Khan and another (2004 SCMR 12). In this case the Honourable Apex Court of this Country has held that in cases of hardship sentences awarded for the offences under the Suppression of Terrorist Activities (Special Courts) Act (XV of 1975) could be suspended and in this way he supports the submissions made by learned counsel for the petitioners.
7. To appreciate the arguments raised by learned counsel for the petitioners about the jurisdiction of the appellate Court qua the release of a convict during the pendency of appeal, a careful appraisal of Section 25 of Anti-Terrorism Act, 1997 is necessary which reads as under:--
"Appeal.-(1) An appeal against the final judgment of
a [
(2) Copies of
judgment of [
(3) An appeal
under sub-section (1) may be preferred by a person sentenced by an [
(4) The Attorney General [Deputy Attorney General, Standing Counsel] or an Advocate General [or an Advocate of the High Court or the Supreme Court of Pakistan appointed as Public Prosecutor, Additional Public Prosecutor] may, on being directed by the Federal or a Provincial Government, file an appeal against an order of acquittal or a sentence passed by [Anti-Terrorism Court] within fifteen days of such order.
(4A) Any person who is a victim or legal heir of g victim, and is aggrieved by the order of acquittal passed by An Anti-Terrorism Court, may within thirty days, file an appeal in a High Court against such order.
(4B) If an order of
acquittal is passed by an
(5) An appeal under this section shall be heard and decided by an Appellate Tribunal within seven working days.
(6) [x x x x x x x x x]
(7) [x x x x x x x x]
(8) Pending the appeal a [High Court] shall not release the accused on bail.
(9) For the purposes of hearing appeals under this section each High Court shall, establish a Special Bench or Benches consisting of not less than two Judges.
(10) While hearing an appeal, the Bench shall not grant more than two consecutive adjournments".
Bare perusal of sub-section (8) of section 25 of the Act reveals that because of the specific bar sentence awarded by a Special Judge cannot be suspended by the High Court during the pendency of appeal and in this view of the matter any application seeking the relief by way of grant of bail are liable to be dismissed straightway but on the other hand, we have observed that such like restriction over the jurisdiction of the Courts qua the grant of bail during the trial as well as qua the suspension of sentence of the convict during the pendency of appeal were introduced in the past but by one way or the other the Courts have been finding ways to grant relief to an accused person in appropriate cases.
For example Section 7 of Suppression of Terrorist Activities (Special Courts) Act, XV of 1975 reads as under:--
"Appeals from sentences passed by Special Court, etc.--(1) a person sentenced by a Special Court shall have a right of appeal to the High Court within whose jurisdiction the sentence has been passed, but save as aforesaid and notwithstanding the provisions of the Code or of any other law for the time being in force or of anything having the force of law by whatsoever authority made or done, no Court shall have authority to revise such sentence, or to transfer any case from a Special Court or to make any order under Section 426 or Section 491 or Section 498 of the Code, or have any jurisdiction of any kind in respect of any proceedings of a Special Court.
(2) An appeal under sub-section (1) shall be preferred to the High Court within thirty days of the passing of the sentence and shall be heard and decided by a Bench of not less than two Judges of the High Court."
Similarly Section 10 of Offences in respect of Banks (Special Courts) Ordinance IX of 1984 which reads as under:--
"Appeals from sentences imposed by Special Court, etc.--(1) A person sentenced by a Special Court shall have a right of appeal to the High Court within whose jurisdiction the sentence has been passed but save as aforesaid and notwithstanding the provisions of the Code or of any other law for the time being in force or of anything having the force of law by whatsoever authority made or done, no Court shall have authority to revise such sentence, or to transfer any case from a Special Court or to make any order under Section 426 or Section 491 or Section 498 of the Code, or have any jurisdiction of any kind in respect of any proceedings of a Special Court.
(2) An appeal under sub-section (1) shall be preferred to the High Court within thirty days of the passing of the sentence and shall be heard and decided by a Bench of not less than two Judges of the High Court".
Since the said provisions of both the statutes are almost the same, the legality of both the sections was examined by the august Supreme Court in case titled Allied Bank Ltd. Vs. Khalid Farooq (1991 SCMR 599) and their lordships were pleased to observe that the High Court has the power to grant bail to the accused during the pendency of investigation of the case or trial in respect of case registered against him under the Ordinance but the sentence of the convict could not be suspended as the Court of appeal has no jurisdiction to release the convict on bail pending final determination of the appeal but in the later part of the judgment while discussing the jurisdiction of the High Court under Section 561-A Cr.P.C. the question with regard to the suspension of sentence of the convict, in exceptional case, the matter was kept open for its determination at the proper time. The relevant portion of the judgment reads as under:
"Thus, the High Court basically has no power under Section 561-A of the Code to release a convict on bail pending the disposal of his appeal under the Ordinance, in view of the clear bar contained in Section 10(1) of the Ordinance. However, in an exceptional ease such as where there is complete want of jurisdiction or the evidence on the record does not make out any case for conviction, the High Court would still he barred from releasing the appellant on bail pending the disposal of his appeal is a matter which I would keep open, to he examined at the proper time when such as case is before us".
Later on in case titled The State Vs. Syed Qaim Ali Shah (1992 SCMR 2192), once again the legality of Section 7 of Suppression of Terrorist Activities (Special Courts) Act, 1975 came under judicial review before the Apex Court of the Country and it was observed that in spite of specific bar by virtue of Section 7 of the said Act under Section 561-A Cr.P.C. sentence could be suspended in case of hardship by the appellate Court. The relevant portion of the judgment reads as under:--
"Section 561-A Cr.P.C. cannot be invoked in aid where there are express provisions dealing with a particular subject, for example, Section 426, Cr.P.C. empowers an appellate Court to suspend the sentence or to admit a convict to bail during the pendency of a criminal appeal against conviction. In presence of above express provision in the Code, Section 561-A cannot be pressed into service nor the above provision can be used to defeat the express intention of the Legislature, for example, in the present case sub-section (1) of Section 7 of the Suppression of Terrorist Activities (Special Courts) Act, 1975 excludes the application of Section 426, Cr.P.C. during the pendency of an appeal under the Act before the High Court. If the High Court was to invoke Section 561-A Cr.P.C, because of the above exclusion of Section 426, Cr.P.C, it may amount to defeating the legislative intent However, the exclusion of the application of Section 426, Cr.P.C by virtue of Section 7(1) of the Act daring the pendency of an appeal of a convict before the High Court is founded on the assumption that the appeal would be disposed of within three months as provided in sub-section (2) of Section 7 of the Act, but in case an appeal of convict remains pending for a number of years either on account of delaying tactics on the part of the Prosecuting Agency or because of the heavy work load of the Court, would it be fair and just to deny him bail on the ground of delay? The delay in prosecution of a criminal case amounts to abuse of process of Court/law warranting grant of bail, the High Court in a case of above nature may press into service Section 561-A Cr.P.C, but not as a matter of course or as a substitute to Section 426, Cr.P.C. The delay should be of the nature which may be repulsive and unconscionable".
Their lordships further observed that the sentence of convict could be suspended under Section 561-A Cr.P.C. in case of serious kind of ailment of the petitioner. Relevant portion of the said judgment reads as under:
"If a convict during the pendency of appeal before the High Court develops an ailment of the nature that keeping him in detention may result into his death and that he cannot be provided requisite treatment under detention in the Government and/or other hospitals, the High Court may in such a case invoke Section 561-A, Cr.P.C. and May release him on bail, as such an order will be within the ambit of the expression "or otherwise to secure the ends of justice", used in Section 561-A, Cr.P.C."
Keeping in view the said observation of the Apex Court of the Country, the legislatures in order to further curtail the authority of superior Courts qua the grant of relief by way of releasing the accused on bail while enforcing National Accountability Ordinance, 1999 along with other sections also added Section 561-A Cr.P.C, as well in Section 9 (b) of the Ordinance. The relevant portion of the Section 9 of the Ordinance, reads as under:--
"Corruption and Corrupt Practices.--(a)
(b) All offences under this Ordinance shall he non-bailable and notwithstanding anything contained in Sections [426,491,] 497,498 and 561A or any other provision of the Code, or any other law for the time being in force no Court [xxxx] shall have jurisdiction to grant bail to any person accused of any offence under this Order".
The vires of said section came under judicial review before the Full Bench of this Court in case titled Anwar Saifullah. Khan Ex.Federal Minister Vs. State and 4 others [PLJ 2000 Lahore 2070 (FB)] and their lordships declared that under Article 199 of the Constitution of Islamic Republic of Pakistan bail could be granted to a person accused of offences falling under the NAB Ordinance. Relevant portion of the judgment reads as under:--
"It is true that under Section 9(b) all offences under the National Accountability Bureau Ordinance (XVIII of 1999) (briefly referred to as the Ordinance) are non-bailable and it has been stated that notwithstanding anything contained in Sections 426, 491, 497, 498 and 561-A or any other provision of the Code, or any other law for the time being in force no Court including the High Court shall have jurisdiction to grant bail to any person accused of such offences. It is also true that Chairman, NAB has been empowered under sub-section (c) of Section 9 ibid to release any accused from its custody/detention after considering the gravity of the charge against such person and where the accusation specifies any amount in respect of which the offence is alleged to have been committed, after the payment of such amount. The underlying objectives of this Ordinance in the words of preamble is "to provide for effective measures for the detention, investigation, prosecution and speedy disposal of cases involving corruption, corrupt practices, misuse/abuse of power, misappropriation of property, kickbacks, commissions and for matter connected and ancillary or incidental thereto. The supreme purpose of this legislation is to effect recovery of defaulted amounts of lending institutions, money or gains, obtained through corrupt practices, misuse or abuse of powers, kickbacks, commissions and other like amounts. In Mrs. Shahida Faisal v. Federation of Pakistan etc. (W.P. No. 739/2000), the Full Bench of this Court has held that the powers conferred upon the Chairman, NAB, are Draconian in nature, nevertheless these are not un-commensurate with the ground realities obtaining in our cherished State. The Full Bench has further held that the Ordinance is a subordinate legislation and this Court had jurisdiction to review, examine and strike down any act or omission of the NAB as well as that of the Accountability Court if such act or omission is without jurisdiction, in excess of jurisdiction, or is in defiance of patent provisions of law or tainted with mala fides. In this view of the matter, we have no difficulty in holding that this Court has jurisdiction under Article 199 of the Constitution (1973) to grant bail to the petitioner".
In case titled Khan Asfandyar Wali and others Vs. Federation of Pakistan through Cabinet Division Islamabad and others (PLJ 2001 SC 817) once again vires of NAB, Ordinance particularly Section 9 (b) came under judicial review and their lordships while examining Section 9(b) of the ibid Ordinance observed that the superior Courts have the power to grant bail under Article 199 of the Constitution independent of any statutory source of jurisdiction such as Section 497 Cr.P.C. and thus held that Section 9(b) of the NAB Ordinance is ultra vires the Constitution. The relevant portion of the judgment reads as under:--
"It was held in the case of Zafar Ali Shah (supra) that the powers of the superior Courts under Article 199 of the Constitution "remains available to their full extent ... notwithstanding anything contained in any legislative instrument enacted by the Chief Executive." Whereas, Section 9(b) of the NAB Ordinance purports to deny to all Courts, including the High Courts, the jurisdiction under Sections 426, 491, 497, 498 and 561A or any other provision of the Code of Criminal Procedure or any other law for the time being in force, to grant bail to any person accused of an offence under the NAB Ordinance. It is well settled that the Superior Courts have the power to grant bail under Article 199 of the Constitution, independent of any statutory source of jurisdiction such as Section 497 of the Criminal Procedure Code, Section 9(b) of the NAB Ordinance to that extent is ultra vires the Constitution. Accordingly, the same be amended suitably".
Similarly in case titled Abdul Aziz Khan Niazi Vs. The State through Chairman NAB Islamabad (PLD 2003 Supreme Court 668), the August Supreme Court while entertaining Constitutional petition released the petitioner on bail.
8. Jealously guarding its authority qua the grant of relief to an aggrieved/deserving person by the Court of competent jurisdiction is very natural. The ratio of above mentioned judgments does depict the same view of the superior Courts. The spirit/theme of Anti-Terrorism Act, 1997 is to provide speedy justice that is why under Section 25(5) of the ibid Act the appellate tribunal is required to decide the appeal within seven days and thus debarring the appellate authority from releasing the convict on bail during the pendency of his appeal is understandable but it seems that the legislator while making the said provisions of law has ignored the fact that if the appeal is not decided within the said period and remained pending for many years due to heavy workload of the Court then what kind of relief is available to the convict if otherwise his case is that of corum non judice, or short sentence or when the convict is suffering from ailment which could not be treated in the jail hospital. It is well settled that inordinate delay in prosecution of a criminal case amounts to abuse of process of law/Court and in such like situation accused/convict earns the right for the grant of bail.
Being guided by the views of their lordships find mentioned in above referred cases we hold that in spite of the bar under Section 25 (8) of the Anti-Terrorism Act, 1997 qua the release of a convict on bail during the pendency of his appeal, High Court is not deprived of the authority/jurisdiction to grant said relief under extraordinary constitutional jurisdiction in view of Article 199 of the Constitution of Islamic Republic of Pakistan. Accordingly we hold that in the exercise of its extraordinary constitutional jurisdiction High Court in exceptional cases can suspend the sentence of a convict during the pendency of his appeal when satisfied that it is a case of corum non judice or there is inordinate delay in disposal of appeal or the sentence is short and there is no possibility of hearing of appeal in near future and where the convict during the pendency of his appeal before the appellate Bench develops an ailment of the nature that keeping him in detention/confinement may result into his death and that he cannot be provided requisite treatment under detention in the Government and/or other hospitals. We are also of the considered view that the said provision of statute i.e. sub-section (8) of Section 25 of the Anti-Terrorism Act, 1997 is harsh in nature and contrary to principles of natural justice. Accordingly we recommend for suitable amendment in the legislation,
9. W.P. No.
12332/2006 titled Allah Din Vs. Special Judge, Anti-Terrorism Court No. 1,
Through this constitutional petition Allah Din petitioner has asked for suspension of sentence passed by Special Judge, Anti-Terrorism Court No. 1, Lahore vide judgment dated 19.10.2006 in case FIR No. 399/2006 dated 07.08.2006 for the offence under Sections 147/149/511 PPC and Section 7 of Anti-Terrorism Act, 1997 registered at Police Station Old Anarkali, Lahore whereby petitioner has been convicted under Section 7(h) of the ibid Act and sentenced to five years and to pay fine of Rs. 5,000/-.
Allegation against the petitioner and his co-accused is that on 07.08.2006 at about 2:15 p.m. they quarreled with their opposite party in the premises of High Court when they were coming out of the Court room after attending the proceedings. Allegedly during the occurrence petitioner and his co-accused had given kick and fist blows to the complainant party.
We have observed that the learned trial Court has convicted the petitioner under Section 7 (h) of the ibid Act, whereas the bare perusal of the said section reveals that the provisions of the same are not attracted in the circumstances of this case because FIR is absolutely silent about use of fire-arms during the occurrence nor this occurrence had taken place at the place of worship. The case of the petitioner calls for reappraisal of evidence. Accordingly this petition is allowed, conviction and sentence of the petitioner is suspended and he is admitted to bail subject to his furnishing bail bonds amounting to Rs. 100,000/- (rupees one lac) with one surety in the like amount to the satisfaction of Deputy Registrar (Judicial) of this Court.
10. W.P. No. 3076/2007 titled Zafar Iqbal Vs. The State and another.
Through this constitutional petition Zafar Iqbal
petitioner has asked for suspension of sentence passed by Judge,
It is submitted that the evidence available on the record is not sufficient to uphold the conviction and sentence of the petitioner. Submits that there is no allegation against the petitioner qua demanding and receiving the ransom money and only allegation against the petitioner that the petitioner was seen at the place where Muhammad Waheed-ud-Din (abductee) was under illegal confinement of the accused persons.
We are afraid the contentions raised by learned counsel have no force because bare perusal of the impugned judgment reveals that allegation against the petitioner is that he and his co-accused had kept Waheed-ud-Din (PW.9) in their illegal confinement, allegedly they kept the abductee in a Baithak and chained him with a cot; petitioner was also arrested by the raiding party at the spot when the abductee was recovered and his co-accused managed to escape. No ground for suspension of sentence is made out Dismissed.
11. W.P. No. 3338/2007 titled Muhammad Sadiq and another Vs. The State and another.
Through this constitutional petition Muhammad Sadiq and Shahzad petitioners have asked for suspension of sentence awarded by Special Judge, Anti-Terrorism Court No. 1, Lahore vide judgment dated 06.02.2007 in case FIR No. 298/2006 dated 26.05.2006 for the offence under Sections 341/355/386/365 PPC registered at Police Station Saddar Kasur whereby petitioners have been convicted under Section 341 PPC and sentenced to imprisonment for one month each. Both the petitioners have also been. convicted under Section 355/34 PPC and sentenced to imprisonment for two years each. Trial Court has also convicted the petitioners under Section 386/34 PPC and sentenced them to imprisonment for five years each and to pay a fine of Rs. 5,000/- each. All the sentences have been ordered to run concurrently, benefit of Section 382-B Cr.P.C, has also been extended in favour of the petitioners.
Allegation against the petitioners is that they after abducting Safdar Ali complainant had forced him to sign certain documents as well as deprived the complainant of his cash, mobile phone, wrist watch etc. Allegedly petitioners also after removing the clothes of the complainant took his photographs.
We have observed that the learned trial Court vide the impugned judgment has already acquitted the petitioners from the charge under Section 365-A Cr.P.C. and sentenced them for the offences under Sections 341, 355/34, 386/34. The petitioners have almost undergone the sentence of imprisonment for the offence under Sections 341 and 355 PPC and with regard to Section 386 PPC, we have observed that prima facie the evidence on the record is not sufficient to attract the provisions of this Section and the evidence of the prosecution calls for reappraisal Similarly record of this case reveals that petitioners have already served out more than one and half year of their sentence of imprisonment and the possibility of hearing of their appeal in the near future is not within sight. Accordingly this petition is allowed, conviction and sentence of the petitioners is suspended and they are admitted to bail subject to their furnishing bail bonds amounting to Rs. 100,000/- (rupees one lac) each with one surety each in the like amount to the satisfaction of Deputy Registrar (Judicial) of this Court.
12. W.P. No. 3618/2007 titled Salman Vs. Special Judge, Anti Terrorism Court No. 1, Gujranwala and others W.P. No. 3947/2007 titled Irfan Vs. Special Judge, Anti-Terrorism Court No. 1, Gujranwala and others. Through these constitutional petitions Salman and Irfan petitioners have asked for suspension of sentence awarded by Special Judge., Anti-Terrorism Court No. 1, Gujranwala vide judgment dated 31.10.2006 in case FIR No. 640/2005 dated 18.11.2005 for the offence under Sections 324/353/34 PPC and Section 7(b) of Anti-Terrorism Act, 1997 and Section 13 of Pakistan Arms Ordinance, XX of 1965 registered at Police Station Cantt., District Gujranwala whereby petitioners have been convicted under Sections 324/34 PPC and sentenced to undergo three years RI each and to pay Rs. 5,000/- each, or in default whereof to further undergo SI for two months, only. Both the petitioners have also been convicted under Sections 353/34 PPC and sentenced to undergo for two years each, All the sentences have been ordered to run concurrently, benefit of Section 382-B Cr.P.C. has also been extended in favour of the petitioners.
We have observed that the allegation against both the petitioners (brothers) is that they made firing at the police party but admittedly none of the police official received any injury during the occurrence; sentence of both the petitioners is short i.e. maximum three years and according to the record both of them have already undergone major portion of their sentence. Similarly the possibility of hearing of their appeals in near future is not within sight. Accordingly these petitions are allowed, conviction and sentence of the petitioners is suspended and they are admitted to bail subject to their furnishing bail bonds amounting to Rs. 100,000/- (rupees one lac) each with one surety each in the like amount to the satisfaction of Deputy Registrar (Judicial) of this Court.
(J.R.) Order accordingly.