Imtiyaz Murtaza J. - (1.) THE application in hand has been preferred on behalf of Ahsan under Section 389 of the Code of Criminal Procedure, 1973. THE applicant-appellant is one of the appellants in the above mentioned pending appeal. THE prayer made in the application is that the judgment and order of conviction and sentences recorded against the appellant be suspended pending appeal.
(2.) THE appeal impugning the judgment and order of conviction was preferred in this Court on 3.7.1989 and the same was admitted by means of order dated 4.7.1989 attended with further order to enlarge the appellant on bail pending appeal. THE reason for preferring this application as assigned in the application is that the appellant intends to contest the Lok Sabha election and 18.4.2009 being the last date for filing nomination, the learned counsel insisted on disposal of the application. Regard being had to urgency of the matter as pointed out by the learned counsel, the matter was heard at length and having considered the matter in all its ramifications, the application was rejected studded with the observation that detailed orders shall follow. THE detailed order runs as under : It would transpire from the record that the appellant alongwith co-appellants was convicted in S.T. No. 163 of 1987 for offences under Sections 147, 148, 323/149 and 302/149, I.P.C. and, each of them were sentenced to undergo R.I. for one year, six months and imprisonment for life respectively. According to prosecution case, relations between the parties were strained on account of litigation going on between the complainant on one hand and Shabbir father of Irfan and others on the other hand over a piece of land. On 21.7.1985, there was some commotion hearing which the mother of complainant came out. Immediately as she came out, she was inflicted lathi blow by Irfan appellant. In the meanwhile, the complainant also came back from the market to whom the injured narrated the incident of assault on her. After a short while, i.e., at 6 p.m. the accused persons out of which appellant Ahsan was armed with country made pistol came at the roof. Out of curiosity, the wife of complainant namely Hazra stood near the window and the accused persons including appellant, noticing her standing near the window, fired at Hazra, inflicted fire arm injuries on her head, fingers and mouth and she died on the spot. In so far as Ahsan appellant is concerned he was convicted of the charge under Sections 148 and sentenced to two years R.I., again under Section 323/149 and sentenced to six months S. I. and lastly under Section 302/149 and sentenced to imprisonment for life. An old enmity is cited as causative factor for assault in which father of appellant Ahsan was attacked who was rushed to A.I.I.M.S. where he expired next day.
(3.) THE learned counsel for the appellant submitted that initially, the father of appellant namely Shabbir was assaulted which case was registered as Case Crime No. 33 of 79 under Sections 147, 148, 452, 307 and 149, I.P.C. THE case was tried vide S.T. No. 12 of 1981 and the trial culminated in conviction vide judgment and order dated 29.3.1982. Subsequently a criminal appeal was filed. According to learned counsel, the said appeal was decided in terms of false statement made by the counsel for the appellant in that case that a compromise has been brought about between the parties further stating that the complainant of that case was not inclined to proceed with the prosecution of the appellant in appeal, and in consequence the appellant of that case was sentenced to pay fine of Rs. 5,000 in lieu of sentence awarded by the trial court. According to further submission of the learned counsel, no such compromise was arrived at and on coming to know of the tricks played by the appellant of that case, his client has already preferred appropriate application. The learned counsel further submitted that the conviction recorded against the appellant hinges on very feeble ground and the judgment and order of the court below is not likely to be sustained at the time of final hearing of the appeal attended with further submission that the appeal having been filed in the year 1989 is likely to linger on without there being any prospects in the offing of early hearing. However coming to the merit of the present application, the learned counsel stated across the bar that the appellant is a peace loving citizen and belongs to a reputed family and has also been dabbling in social works manifesting his dedication and devotion to the service of the poor and therefore, looking to the background of his family, he intends to contest the election but he is hampered by disqualification stemming from order of conviction which is operating against him. The learned counsel for the appellant also cited the case of Navjot Singh Sidhu, 2007 (1) JIC 707 : 2007 (1) ACR 812 (SC), in which the Apex Court quintessentially held as under : "The legal position is therefore clear that an appellate court can suspend or grant stay of order of conviction. But the person seeking stay of conviction should specifically draw the attention of the appellate court to the consequences that may arise if the conviction is not stayed. Unless the attention of the Court is drawn to the specific consequences that would follow on account of the conviction, the person convicted cannot obtain an order of stay of conviction. Further, grant of stay of conviction can he resorted to in rare cases depending upon the special facts of the case." ;