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Criminal Miscellaneous No. 119/B of 1986 in Criminal Appeal No 1984, decided on 22nd March, 1986.
‑‑‑S. 426‑‑Penal Code (XLV of 1860). S. 377‑‑Sentence‑‑Suspension of sentence pending appeal‑‑Sodomy‑‑Accused subjecting a young boy of 15/16 years of age and student of 9th Class to sodomy‑‑Conviction order revealing that not only force was used but male organ was also inserted‑‑In view of nature of offence, circumstances in which it was committed and public condemnation of such offences by society, discretion of Court, held, could not be exercised in favour of accused despite expiry of statutory period of two years‑‑Application for suspension of sentence, pending appeal, dismissed.
Zulfiqar Muhammad Tufail v. The State 1981 S C M R 727 and Muhammad Munir and 4 others v. The State 1984 P Cr. L J 581 rel.
Muhammad Aslam Jan for Petitioner.
On 30‑4‑1984, at dusk, Shaukat Ali, forcibly shoved Riffaqat Ali a young boy of 15‑16 years of age, to a Kassi, in the area of Hassan Abdal and committed sodomy with him. Matter was reported to police without loss of time. A case under section 12 of Offence of Zina (Enforcement of Hudood) Ordinance, 1979, and section 377 of Pakistan Penal Code, was registered at Police Station Hassan Abdal. In the result of full‑dressed criminal trial, accused was found guilty of offence of sodomy and sentenced to a period of 10 years' R.I. with a fine of Rs.2,000. As regards offence under section 12 of Ordinance VII of 1979, he was exonerated. Conviction order is dated 18‑3‑1984. On 16‑4‑1984, dealing with matter of suspension of sentence, this Court observed "The sentence is substantial. The contentions raised by learned counsel for the petitioner need deeper appreciation of evidence which cannot be done at the bail stage. The petition is, therefore, dismissed." Two years have passed since the date of conviction and the appeal has not been heard. Convict, relying on section 426 (1‑A) (c), has again applied. It is contended that since the appeal has not been heard and decided within the statutory period given in the afore noticed section of law, the convict is entitled to be released on bail.
Mr. Aslam Jan, Advocate, has been heard. After hearing learned counsel, I am not inclined to suspend the sentence. A young boy of 15‑16 years of age and student of 9th Class was subjected to the sodomy. Conviction order reveals that not only force was used, but male organ was also inserted. Looking to the nature of offence. A circumstances in which it was committed as also the public condemnation which such offences earn in our society, I am not inclined to exercise my discretion in favour of the convict‑appellant, despite the expiry of statutory period of two years. Refer Zulfiqar Muhammad Tufail v. The State 1981 S C M R 727, Muhammad Munir and 4 others v. The State 1984 P Cr. L J 581. In view of the severity of sentence as also the, nature of offence, suspension of sentence pending appeal cannot be ordered. However, criminal appeal may be set down for hearing before the year is out and in case the appeal is not heard and decided as observed above convict‑appellant will be free to apply again for bail., IC In the light of the observations made above, petition is dismissed.
M.Y.H. Petition dismissed.
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