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Criminal Petitions Nos. 266 and 1 of 1986 in Criminal Appeal No. 89 of 1986, decided on 30th July, 1986.
(Against the judgment and order of the Lahore High Court. Lahore, dated 7th June, 1986 in Criminal Miscellaneous No. 1 of 1986 in Criminal Appeal No. 80 of 1986) .
‑‑‑Art. 185(3)‑‑Criminal Procedure Code (V of 1898), Ss. 426‑‑Penal Code (XLV of 1860), S. 302, P.P.C.‑‑Suspension of sentence‑‑Exercise of powers under S. 426, Cr.P.C.‑‑Accused found guilty of intentionally committing murder and sentenced to death‑‑High Court suspending sentence by lengthy order‑‑Contention that order of suspension was not proper exercise of powers conferred under S. 426, Cr.P.C. grounds of conviction and sentence having not been given proper consideration‑‑In view of some unusual features of case, leave to appeal granted for an authoritative pronouncement with regard to exercise of power under S. 426, Cr.P.C., in circumstances of case found established and to examine whether such a detailed order was not more likely to affect final hearing and disposal of appeal.
Abdul Ghaffar v. Anwar‑ul‑Hassan and others 1978 S C M R 149; Abdullah Khan v. Karam Dad Khan and another 1968 S C M R 1064, Faqir Muhammad v Akbar and others 1979 S C M R 270; Haji Mir Aftab v. The State 1979 S C M R 320 and Maqsood v. Ali Muhammad and another 1971 S C M R 657 ref.
M.A. Zafar, Advocate Supreme Court with Muhammad Aslam Chaudhry, Advocate‑on‑Record for Petitioner.
Nemo for Respondents.
Date of hearing: 30th July, 1986.
The petitioner, brother of Khaliq dad Khan deceased, seeks leave to appeal against an order passed by the Lahore High Court on 7‑6‑1986 suspending the sentence of death awarded to respondent No. 1, a Sub‑Inspector of Police who was convicted and sentenced to death by the learned Sessions Judge, Khushab.
The Sessions Judge, Khushab on 10‑2‑1986 convicted the respondent No. 1 under section 302, P.P.C. sentenced him to death subject to the confirmation of the sentence of death by the High Court and to a fine of Rs.10,000 or in default R.I. for six months. He was ordered to be taken into custody as he was on bail and to be sent to jail. The conclusion drawn by the learned Sessions Judge was in the following words:‑
"It has been found above that the occurrence took place in the manner alleged by the prosecution. In fact the accused has admitted having participated in it. It has also been found that he had a motive for the occurrence. His defence plea has not been found to be correct nor he had any right of self‑defence at the time of firing at the deceased. In view of these findings I hold the accused guilty of intentionally committing the murder of the deceased."
The respondent No.1 moved an application under section 426, Cr.P.C. which was disposed of by impugned order after notice to the State. The impugned order of the High Court runs into sixteen typed pages and the application was allowed after considering every aspect of the case but mainly relying on the following two grounds‑‑
"1. The learned trial Court has not discussed in detail the report of the judicial inquiry nor has given any reasons for disbelieving the same.
2. We feel inclined to suspend sentence of the petitioner on the ground that the plea of self‑defence raised, by him needs serious consideration."
In passing the order suspending the sentence, the learned Judges have relied on and made a reference to the decisions of this Court in Abdul Ghaffar v. Anwar‑ul‑Hassan and others 1978 S C M R 149, Abdullah Khan v. Karam Dad Khan and another 1968 S C M R 1064, Faqir Muhammad v. Akbar and others 1979 S C M R 270, Haji Mir Aftab v. The State 1979 S C M R 320, Maqsood v. Ali Muhammad and another 1971 S C M R 657.
The learned counsel for the petitioner has drawn our attention to some of the unusual features of the case and the manner it was dealt with at various stages. He has also recounted the main features of the case in order to demonstrate that the order of suspension of the sentence was actually not proper exercise of the powers conferred under section 426, Cr.P.C. The grounds which have been made the basis of conviction and sentence according to the learned counsel, have not been taken note of and given due and proper consideration.
We find that the case does exhibit some unusual features and requires an authoritative pronouncement with regard to the exercise of powers under section 426, Cr.P.C. in the circumstances of the case found established and also whether such a detailed order as has been recorded is not more likely to affect the final hearing and disposal of the appeal itself which is yet to take place. Leave to appeal is, therefore, granted.
M.I. Leave granted.
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