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Criminal Miscellaneous No. 1 in Criminal Appeal No.290 of 1986, decided on 7th October, 1986.

‑‑‑S. 497/498‑‑Successive bail applications in same Court‑‑Principles laid down in State v. Zubair P L D 1986 S C 173 elaborated.

Sabira's case P L D 1986 S C 173 ref.

‑‑--‑S. 426‑‑Penal Code (XLV of 1860), S. 307/34‑‑Appeal (criminal)‑ Suspension of sentence‑‑Judge of High Court who admitted an appeal or disposed of a number of petitions for suspension of sentence is not compelled to hear and dispose of that appeal when same comes up for hearing.

Where a criminal appeal is preferred in the High Court, there is no practice or precedent which compels a Judge of Court, who has dealt with the bail petition of the said appellant or his co‑appellant at the stage of investigation, inquiry or trial, to hear his appeal or petition seeking suspension of his sentence, or that of his co‑appellant. There is no clear cut practice that where an appeal is admitted and a petition for suspension of sentence filed by an appellant is disposed of by a Judge, that all other petitions seeking suspension filed by the remaining appellants who are bound by the same judgment are also heard by the same Judge who dealt with the first petition. However with the advent of Zubair's case in P L D 1986 S C 173 it is incumbent that subsequent petitions be heard and decided by the same Judge There is no practice or precedent that a Judge of the Court who has admitted an appeal or disposed of a number of petitions for suspension of sentence, is compelled to hear and dispose of that appeal, when it comes up for hearing.

Zubair's case P L D 1986 S C 173 distinguished.

‑‑‑S. 426‑‑Penal Code (XLV of 1860), S. 307/34‑‑Petition for suspension of sentence pending final determination of appeal‑‑Sentence cannot be suspended in such a case until whole evidence was appraised and it was decided that accused was or was not united by common intention with his other co‑accused in commission of offence‑‑Fact that accused absconded for some considerable time in the case during stage of investigation would mean that was a dangerous and desperate character and his sentence would not be suspended in circumstances.

R.A. Awan for Petitioners.

Muhammad Afzaal Siddiqui for the Complainant.

Imtiaz Ahmed Chaudhery for the State.

This is a petition under section 426, Cr.P.C. by Haroon Khan and Abdur Rahman, petitioners, for the suspension of their sentences, pending the final determination of their appeal.

2. Learned counsel for the petitioners does not press this petition qua Haroon Khan, petitioner No.1. In these circumstances, this petition qua Haroon Khan, petitioner No.1, is dismissed.

3. Abdur Rehman, petitioner No.2, has been convicted under section 307/34, P.P.C. and sentenced to ten years simple imprisonment with a fine of rupees two thousand (Rs.2,000) or, in default thereof, to undergo further simple imprisonment for six months. The fine has been ordered to be paid to Mohammad Siddique complainant.

4. On behalf of the petitioner it is submitted that the present petition was previously listed before another learned Single Judge of this Court and that the learned counsel for the complainant, relying upon Zubair's case P L D 1986 SC 173, got the same transferred to this Bench, which action on the part of the transferring Judge was illegal, as Zubair's case (supra) did not apply to a case as the present. It is submitted that this petition should be sent back to the said learned Judge, who transferred the case, for disposal. Next, it is contended that Abdur Rehman, petitioner, only fired ineffectively at the complainant and in view of the fact that no recovery of any firearm was proved against him, his sentence should be suspended. It is further submitted that the sentence imposed on the petitioner is excessive, which, in appeal, would be drastically reduced, which thus entitles the suspension of his sentence.

5. On behalf of the complainant it is submitted that since an earlier bail petition (Criminal Miscellaneous 1378‑B of 1984) filed by Abdur Rehman, petitioner, was disposed of by me on 12‑6‑1984, on grounds of propriety and in accordance with the general practice established in this Court, the present petition for suspension should also be decided by me. In this connection, learned counsel has relied on Zubair's case (supra). It is next submitted that two of the co‑accused in this case, namely. Fazalur Rehman and Yousaf alias Jamoora, co‑accused, are still proclaimed offenders and have not been arrested since the date of the commission of the crime. It is further submitted that the case in instance involves the murder of Muhammad Arif and injuries to Muhammad Latif and Yar Mohammad P.Ws., in addition to an attempt on the life of Muhammad Siddique, complainant, which proved unsuccessful. It is further contended that all the five accused in the case, including the petitioner, absconded after the occurrence, that proceedings under section 87, Cr.P.C. were initiated against them, that Abdur Rehman, petitioner, and Ghulam Nabi and Haroon Khan, co‑accused, were arrested on 14‑4‑1984 and that Fazal‑ur‑Rehman and Muhammad Yousaf, co‑accused, are still absconding. Since the accused were previously held to be desperate and habitual offenders, the petitioner is not entitled to the suspension of his sentence.

6. I have given my anxious consideration to the arguments addressed by the learned counsel for the petitioner, the complainant and the State.

7. The principle laid down by the Supreme Court in Zubair's cases (supra) basically relates to petitions for bail filed by accused persons at the stage of investigation, inquiry or trial. Once a case is decided, there is no general practice of this Court which compels petitions for the suspension of sentences filed by persons who have been convicted after trial, to be heard by the same learned Judge who may have heard and decided their bail petitions at or before their trial. The principle of Zubair's case is that when a lis relating to the release on bail of a person accused of an offence in a case at the pre‑trial or trial stage is heard by a learned Judge of a High Court, he alone should hear all the subsequent bail petitions filed by the same or other accused in the same case, or in the cross case. The object is to enable the same learned Judge to decide the lis, to the limited extent to which it deals with appraisal of material collected by the prosecution for the purposes of determining whether bail should be granted, so that if all the accused connected with the case apply for bail, they may get their case evaluated by the same mind and thus avoid conflict and 14 disharmony arising out of different Judges with variable approaches[ deciding the case of different accused on differing principles, on the same material. This salutary practice also enables the same learned Judge to deal with a second petition that may be filed, so that differing orders may not be passed by two Judges on the same material.

8. Where a criminal appeal is preferred in the High Court, there is, no practice or precedent which compels a learned Judge of this Court, I who has dealt with the bail petition of the said appellant or his co‑appellant at the stage of investigation, inquiry or trial, to hear his appeal or petition seeking suspension of his sentence, or that of his co‑appellant. Surprisingly, there is no clear-cut practice that where an appeal is admitted and a petition for suspension of sentence filed by an appellant is disposed of by a learned Judge, that all other petitions seeking suspension filed by the remaining appellants, who are bound by the same judgment are also heard by the same Judge who dealt with the first petition. However, with the advent of Zubair's case (supra). It is incumbent that subsequent petitions be heard and decided by the same learned Judge. Whilst on the subject it may be mentioned that there is no practice or precedent that a learned judge of the Court who has admitted an appeal or disposed of a number of petitions for suspension of sentence, is compelled to hear and dispose of that appeal, when it comes up for hearing.

9. The view of the learned counsel for the complainant that I am bound by Zubair's case, or by some other practice or precedent of this Court, which compels me to decide the present petition of Abdur Rehman, petitioner, for the suspension of his sentence, because I had earlier decided his bail petition at the stage of investigation is erroneous and misconceived.

10. I would not like to waste the time of the parties by sending this petition back to the learned Judge who has transferred it to me for disposal. In the interest of justice, I would dispose of this petition myself.

11. With regard to the submissions on the merits of the case. I would only say that it is not until the whole evidence is appraised, that it would be possible to decide whether Abdul Rehman, petitioner, was or was not united by common intention with his other co‑accused in the commission of the offences, for which he was tried, convicted and sentenced. The fact that the petitioner absconded for some sufficient time in this case during the stage of investigation compels me to hold that he is a dangerous and desperate character and his sentence should Not be suspended.

12. For the foregoing reasons, there being no merit in this petition, the same is dismissed.

M.B.A. ‑‑‑‑‑ Petition dismissed.

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