LAZAR vs THE STATE

ORDER

1. ' NADEEM AZHAR SIDDIQI, J.--By this application the appellant has prayed for suspension of sentence and his release on bail during pendency of appeal.

2. ' The learned counsel for the appellant submits that appellant is in custody since 24-9-2000 and there is no convincing evidence available against him and no private witness was examined and has been erroneously convicted and sentence to life imprisonment. The learned counsel has relied upon the following reported case: -- ' Pir Mukkram-ul-Haq v. State 2006 SCM R 1225.

3. ' The learned State Counsel has not opposed the grant of bail on the ground that appellant has remained in jail for considerable period and is entitled to the bail pending appeal.

4. ' The jail roll has been called. From the perusal, it appears that unexpired portion of sentence is 16 years, 10 months and 1 day without fine, which appears to be substantial period of the sentence.

5. The appeal is also not old one.

6. ' Bail pending appeals in the offences offences falling under the prohibitory clause cannot be granted unless it is show that conviction is based on no evidence or inadmissible evidence and is not ultimately sustainable. The grant of bail without considering or ascertaining the questions of guilt or innocence on merits through appraisal of evidence is not justified. It is now well settled principle of law that while hearing of application under section 426, Cr.P.C. Only tentative assessm ent of the evidence is to be made and deeper appreciation of evidence is not permissible.

7. ' For the above observation reliance has been placed on the reported case of Muhammad Saleem v. The State PLD 2006 SC 483 in which it was held as under:-- ' "There is difference between tentative assessment and deep appraisal of evidence and rule is that appellate Court may on the basis of tentative assessment for reason to be recorded, suspend the sentence and grant bail to a convict but the exercise of the power of grant of bail through suspension of sentence on the basis of deep appraisal of evidence is against the principle governing the exercise of powers under section 426(1), Cr.P.C. This is settled law that appellate Court should not go deep into the evidence for the purpose of suspension of sentence by giving the reasons which may amount to express its views on the merits of the case prejudicing the case of one or the other party in appeal."

8. ' The appellant has cited the case of Peer Mukkaram-ul-Haq v. NAB Supra in which bail was granted on the ground of ailment and expiry of substantive portion of the awarded sentence.

9. 'In this case neither the appellant has claimed that he is a sick and infirm person nor he has undergone the substantial part or his awarded sentence.

10. ' The arguments advanced by the learned counsel for the appellant goes to the root of the cast.

11. Which could only be appreciated at the time of hearing of appeal when the entire evidence available on record would be thrashed out.

12. ' In view of above I do not find any merits in this application which, is accordingly dismissed.

13. ' The office is directed to fix the appeal for regular hearing within three months.