FAYYAZ MASIH vs THE STATE
This is a criminal miscellaneous application filed under Section 426 of the Code of Criminal Procedure 1898, seeking the suspension of a sentence and the grant of bail pending the disposal of an appeal. The petitioner was convicted by an Additional Sessions Judge for an offense under Section 9-B of the Control of Narcotic Substances Act 1997, receiving a six-month rigorous imprisonment sentence for the possession of 400 grams of Charas. The core legal question was whether the petitioner, having already served a portion of his short sentence, was entitled to the suspension of his sentence and release on bail pending appeal. The Court held that given the short duration of the sentence imposed and the time already served by the petitioner, the sentence should be suspended. The Court did not delve into the merits of the conviction but exercised its discretion to enlarge the petitioner on bail. The key principle laid down is that where a sentence is short, the appellate court may exercise its discretion to suspend the sentence and grant bail pending appeal without examining the merits of the conviction.
- Can a sentence be suspended pending appeal when the term of imprisonment is short?
- Does the presumption of innocence apply to a convict seeking bail pending appeal?
- Is the suspension of a sentence under Section 426 of the Code of Criminal Procedure 1898 dependent on the merits of the case?
- Section 426, Code of Criminal Procedure 1898
- Section 9-B, Control of Narcotic Substances Act 1997
- Section 382-B, Code of Criminal Procedure 1898
ORDER
' This is an application under section 426, Cr.P.C. On behalf of Fayyaz Masih petitioner for suspension of sentence and grant of bail recorded by the learned Additional Sessions Judge, Islamabad through judgment, dated 26-10-2005, whereby, he was found guilty for commission of offence under section 9-B of the Control of Narcotic Substances Act, 1997 and was sentenced to undergo R.I. For six months with fine of Rs,2,000 in default whereof it was ordered that he shall further undergo R.I. For one month. Benefit of section 382-B, Cr.P.C. Was also granted.
2. The allegation against the petitioner was that Charas weighing 400 grams was recovered from petitioner's possession on 13-10-2004 and consequently, F.I.R. No,251, dated f3-10-2004 under section 9-B of Control of Narcotic Substances Act (XXV of 1997) was registered at Police Station Kohsar, Islamabad.
3. The learned counsel for the petitioner contended that the sentence is short and it will take sometime in disposal of the appeal that the petitioner has already served 1 month and 16 days approximately in jail; that the allegation that he was found in possession of 400 grams of Charas is false. Conversely, the bail has been opposed by the learned State counsel on the ground that the petitioner was having in his possession 400 grams of Charas. He has been convicted by a competent Court of law, therefore, the initial presumption of innocence is not available to him and as such he is not entitled for grant of bail.
4. Arguments heard. Record perused.
5. The petitioner was arrested on 13-10-2004 in F.I.R. No,251 registered under section 9-B of Control of Narcotic Substances Act, 1997 with Police Station Kahosar, Islamabad on the allegation that 400 grams of Charas was recovered from him. According to the learned counsel for the petitioner, he was allowed bail by the trial Court after 15 days of his arrest. He had been convicted and sentenced to undergo R.I. For six months vide judgment, dated 28-10-2005. He has served out imprisonment for one month and 16 days after his conviction meaning thereby that he has served sentence of one month and 16 days. He has already been given the benefit of section 382-B, Cr.P.C.
Since the sentence is short, therefore, without going deep into the merits of the case, we accept this petition. By suspending the sentence, the petitioner is enlarged on bail subject to his furnishing bail bonds in the sum of Rs,50,000 with one surety of the like amount to the satisfaction of the trial Court/Duty Judge.