Find a Lawyer

Criminal Miscellaneous No. '9 of 1984, decided on 15th March, 1984.

-- Ss. 426, 497 & 498-Appellate Court, pending appeal before it, empowered to order suspension of execution of sentence in accord ance with facts of each case and order convict to be released on bail or on his own bond-Such order has to be based on reasons to be recorded by Court-In presence of conviction, initial presumption is against innocence of convicted persons seeking suspension of execution of sentence-Court is authorised to suspend execution of sentence in presence of convincing grounds so as to make it believe that chances of acquittal were equal-In such consideration exception for grant of bail as provided under Ss. 497 & 498, Cr. P. C. and conduct of convict, if he was on bail during .trial, shall receive attention of Court-Penal Code (XLV of 1860), S. 302.

--- Precedents always have a guiding value.

--- Each case is to be decided in light of its own facts.

--.-- S. 426-Penal Code (XLV of 1860), S. 302 -- Evidence Act (I of 1872), S. 32--Dying declaration -- Deceased making two dying declarations one before Doctor and another before Magistrate-Both dying declarations inconsistent and self-contradic tory--Some of prosecution, witnesses not shown to have supported prosecution version-Accused, a woman of above 50 years of age, generally considered old unless shown of exceptional good health--- Accused on bail not ascribed of abuse of concession of bail during trial - Points needing reappraisal of evidence - Suspension of execution of sentence till decision of appeal, held, just and expedient in circumstances---Accused ordered to be released on bail.

Mumtaz Hussain Rathore for Petitioner.

Rafique Mahmood Khan, Addl. A.-G. for the State.

Date of institution : 4th March, 1984.

This is a petition under section 426, Cr. P.. C. for suspension of execu tion of sentence during pendency of appeal.

2. Mst. Gulab Jan was convicted for the murder of Mst. Aslam Jan. under section 302, A. P. C. and was sentenced to life imprisonment by the Sessions Judge. Poonch, on 15th of February, 1984. Suspension of execution of sentence is sought on the following grounds :--

(i) That the dying declaration relied upon by the trial Court, being inconsistent and self-contradictory, was not a sufficient proof so as to warrant conviction of the petitioner

(ii) That the prosecution version was contradicted by its own witnesses. Evidence of Hamid Azam was quoted in this behalf ;

(iii) That the counter-version (alleged suicide) was not improbable in view of the facts of the case ; and

(iv) That the petitioner being above 60 years, was entitled to the benefit of old age. The learned counsel for the petitioner cited 1968 S C M R 1064 ; 1979 S C M R 270 and Muhammad Latif v. State 1983 P Cr. L J 2245.

Mr. Rafique Mahmood Khan, the learned Additional Advocate-General controverted all the objections raised by the learned counsel for the peti tioner and contended that the petitioner was not entitled to the concession of suspension of execution of sentence, as contemplated under law. He supported his contention by referring to P L D 1958 S C (India) 203, P L D 1965 S C 151, 1978 S C M R 173, 149, 458 and 1979 S C M R 270.

3. It is a settled rule that in criminal jurisdiction, each case is to be decided in the light of its own facts. However, the precedents always have a guiding value. The case-law cited by the learned counsel for the parties provides guiding principles for suspension of execution of sentence in accordance with facts of each case. Section 426, Cr. P. C. empower the appellate Court, pending an appeal before it, to order suspension of execution of sentence or order appealed against and also, if the convict is in confinement, to order that he be released on bail or on his own bond. But such order has to be based on reasons to be recorded by the Court. In presence of conviction, the initial presumption is against the innocence of convicted person seeking suspension of execution of sentence. The Court is authorised to suspend the execution of sentence in presence of convincing grounds so as to make it believe that chances of acquittal were equal. In such consideration, exception for grant of bail as provided under sections 497 and 498, Cr. P. C and the conduct of convict if he was on bail during the trial, shall receive attention of the Court. In the instant case, it was told that the deceased made her dying declara tion twice, firstly before the Doctor and secondly before the Magistrate. It was argued that both the dying declarations were inconsistent and self contradictory. Some of the witnesses of the prosecution were not shown to have supported the prosecution version. The petitioner is a woman. The trial Court recorded her age as 51-52 years. The difference of opinion about the age, as suggested by the parties, is immaterial as a woman, when above 50 years, is generally considered old unless shown of exceptional good health. The objections raised by the learned counsel for the petitioner are weighty as these do need reappraisal of the entire evidence. The petitioner is shown of considerable age. She was not ascribed abuse of concession of bail during trial. The aforesaid points suggest that sus pension of execution of sentence, in the present case, is just and expedient. It is, therefore, ordered that the execution of sentence of the petitioner shall remain suspended till decision of the appeal. The petitioner shall be released on bail provided she furnishes bail bond in the sum of Rs. 2,00.000 (Rs. two lac) with two sureties who will undertake individual and joint liability, and with her personal bond in the same amount, to the satisfaction of any Magistrate 1st Class, Muzaffarabad, provided she is not wanted in any other case.

M. Z. M. Bail granted.

Find a Lawyer Near You

Dealing with a matter like this? Connect with a verified advocate in your city — free on SJP Lawyers Directory.