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Criminal Miscellaneous No. 1 of 1979 in Criminal Appeal No. 377 of 1971, decided on 27th October 1979.

--- Ss. 426 & 497(1), proviso-Suspension of sentence-Petitioner (awaiting confirmation of death sentence) 90 years old and mentally as well as physically infirm-Case, held, covered by proviso to S. 497(1) Proviso to S. 491(1), held further, can be invoked in application for suspension of sentence under S. 426, Cr. P. C.-Petitioner released on bait, in circumstances of case.

Asif Sajjad Jan for Petitioner.

Muhammad Nawaz for the State. .

.-Petitioner Hazratullah has been convicted under section 302, P. P. C. and sentenced to death. He has also been convicted under section 307, P. P. C. for murderous assault on one of the P. Ws. and sentenced to ten years' rigorous imprisonment, This is an application for the suspension of sentences awarded to the petitioner on the ground that he was 90 years old and physically as well as mentally infirm. The petitioner has been in the Government Mental Hospital, Lahore since 1971. The report of Dr. M. A. A. Aziz Psychiatrist dated 27-8-1979 is to the effect that he was sad, depressed, senile, non-communicative, no contact with surroundings. He was on extra diet in view of his physical infirmity. He always lived in bed for preference and did not move. Complained of pain in chest. He was on serious ill list. This report is signed by, Dr. M. A. A. Aziz and has been endorsed by the Administrator, Government Mental Hospital, Lahore on 9-10-1979. Learned counsel points out to us that because of the physical as well as mental infirmity of the petitioner the Home Department of the Provincial Government had written to the Administrator, Government Mental Hospital, Lahore, on the 4th of July 1979 that the Governor of the Punjab was pleased to order for the release of the petitioner, who was a mental patient, aged 90 years, and had been admitted in the said hospital through the Rawalpindi Jail Authority in 1971. He was directed to be handed over to his son for taking him home. But later on this memo was cancelled vide subsequent memo. dated 29th of July 1979 in which it was stated that the record indicated that an appeal against the judgment of the Additional Sessions Judge, Rawalpindi dated 28-4-1971 sentencing the petitioner to death was pending in the Lahore High Court and that the matter should be moved first through counsel in the Lahore High Court and then after completion of legal action he may submit mercy petition to the Government for consideration. Learned counsel submits that the petitioner was 90 years old and was mentally as well as physically infirm and that therefore, his case was covered by the proviso to section 497, sub section (I), Cr. P. C. which can be invoked in an application for suspension of sentence under section 426, Cr. P. C. Learned counsel for the State is not in a position to controvert the stand taken by learned counsel for the petitioner. We, therefore, admit the petitioner to bail on medical ground subject to his furnishing security in the sum of Rs. 30,000 (Rupees thirty thousand only) with two sureties each in the like amount to the satisfaction of Deputy Registrar (Judicial) of this Court. This petition stands disposed of.

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