ABDUL SATTAR alias TARA vs HABIB ULLAH and others

ORDER

Criminal Miscellaneous No,1 of 2011.

' SAGHEER AHMED QADRI, J.---Abdul Sattar alias Tara son of Hassan Muhammad was convicted under section 302(b), P.P.C. For the 'murder of Muhammad Siddique (deceased) in case F.I.R. No,242 of 2002 dated 10-5-2002 under sections 302, 324, 109 and 34, P.P.C. Registered at Police Station Nishatabad District Faisalabad and sentenced to imprisonment for life with compensation of Rs,50,000 to be paid to the legal heirs of the deceased under sect* 544-A, Cr.P.C. Vide judgment dated 31-3-2004 passed by learned Additional Sessions Judge, Faisalabad. The petitioner-convict has now sought suspension of sentence on statutory ground as his appeal is pending in the Court since 2004 and so far has not been decided.

2. Learned counsel for the petitioner argued that under section 426(1A)(c) of Cr.P.C, petitioner is entitled for concession as his appeal has not so far been disposed of and his case does not fall within the ambit of proviso whereby if a person who is declared hardened and desperate criminal is disentitled for any such concession. Prayed that this petition be allowed.

3. This petition is opposed by learned D.P.-G. Assisted by learned counsel for the complainant on the grounds that technically the appeal filed by the petitioner is not in accordance with the rules as certified copy of the judgment passed by learned trial court was not annexed with the same; that no doubt the appeal of the petitioner is not decided within the stipulated period but it itself is not a ground for the grant of bail and the courts are to look into the other merits of the case while disposing of any such petitions. In this respect learned counsel for the complainant relied on the judgments reported as ABDUR RASHID v. THE STATE (1988 SCM R 149) and SHAHBAZ v. THE STATE (1992 SCM R 1903). It was further argued that one of the co-accused of the petitioner namely Shaukat, who was acquitted by the learned trial court and against his acquittal an appeal was also filed, which was admitted for regular hearing but the said Shaukat did not appear and subsequently he was murdered; that in these circumstances, if the petitioner is released on bail, there is every likelihood that he may not repeat the offence. Prayed that this petition be dismissed.

4. We have considered the contentions raised by learned counsel for the parties and have gone through the record.

5. It is an admitted fact that petitioner's appeal (Criminal Appeal No,1042 of 2004) is pending in this Court since 2004 and the same has not been disposed of so far. In a recent amendment made on 20th of April, 2011, section 426 of The Code of Criminal Procedure, 1898 has been amended with the insertion of section (1A), which is hereby reproduced:-- "(1A) An Appellate Court shall, except where it is of the opinion that the delay in the decision of appeal has been occasioned by an act or omission of the appellant or any other person acting on his behalf, order a convicted person to be released on bail who has been sentenced----

(a) to imprisonment for a period not exceeding three years and whose appeal has not been decided within a period of six months of his conviction.

(b) to imprisonment for a period exceeding three years but not exceeding seven years and whose appeal has not been decided within a period of one year of his conviction; or

(c) to imprisonment for life or imprisonment exceeding seven years and whose appeal has not been decided within a period of two years of his conviction: ' Provided that the provisions of the foregoing paragraphs shall not apply to a previously convicted offender for an offence punishable with death or imprisonment for life or to a person who, in the opinion of the Appellate Court, is a hardened desperate or dangerous criminal or is accused of an act of terrorism punishable with death or imprisonment for life.

6. Case of the petitioner is covered under Clause (c) whereby it is provided that in case if the appeal of a convicted person who is sentenced to imprisonment for life or imprisonment exceeding seven years whose appeal has not been decided within a period of two years of his conviction, is entitled for concession of bail after suspension of, his sentence provided his case does not fall within the ambit of proviso of the section referred above. If the proviso mentioned above is seen, the concession above mentioned cannot be extended in favour of a previously convicted offender for an offence punishable with death or imprisonment for life or to a person who, in the opinion of the Appellate Court, is a hardened desperate or dangerous criminal or is accused of an act of terrorism punishable with death or imprisonment for life. Learned counsel for the complainant has argued that co-accused of the petitioner namely Shaukat who was- acquitted was subsequently murdered and thus there is every likelihood that the petitioner may not involve, if released on bail, in repetition of any such offence but he was unable to make out a case that the petitioner's case falls within the ambit of proviso mentioned above and thus disentitled for such concession.

7. In a judgment passed by the Hon'ble Supreme Court of Pakistan cited as LIAQUAT v. STATE 1995 SCM R 1819 their Lordships while dealing with the same question at page 434 observed:-- "The effect of insertion of subsection (1-A) after subsection (1) of section 426, Cr.P.C. In the Code of Criminal Procedure in our view, is that the appellant/ convict has been conferred a right to ask for bail pending his appeal, if the Court is unable to dispose of his case within the periods specified in sub-clauses (a) to (c) of section 426(1-A), Cr.P.C. This right of_ the convict/appellant is independent of his right to seek suspension of his sentence by the appellate Court on merits under section 426(1), Cr.P.C. The right conferred on the appellant/convict under section 426(1-A), Cr.P.C.

Therefore, can be exercised by him, notwithstanding the fact that the appellate Court, in exercise of its discretion had earlier declined his prayer for suspension of his sentence on merits under section 426(1), Cr . P.0 . As a necessary corollary, therefore, it follows that the appellate Court cannot- decline to suspend the sentence of an appellant under section 426(1A), Cr . P.0 . On the ground that the appellant has no case on merits or that he would not be entitled to bail on merits or that they have been declined bail earlier on merits. The reasons on which the appellate Court may decline to suspend the. Sentence of the appellant while considering his application under subsection (1-A) of section 426, Cr.P.C, therefore, in our view, must be other than the merits of his case."

8. The judgments cited by learned counsel for the complainant are on different. Facts and distinguishable to the judgment cited above. Admittedly, petitioner remained confined in lock up for more than about seven years after filing of his appeal, therefore, his case clearly falls within the ambit of section 426(1-A)(c), Cr.P.C. Resultantly, when there are no circumstances to reach at a conclusion that petitioner's case is hit by the proviso annexed to section 426(1-A)(c), Cr.P.C, therefore, this petition is allowed. Sentence passed against the petitioner is hereby suspended and he is directed to be released on bail subject to his furnishing bail bonds in the sum of Rs,2,00,000 with two sureties each in the like amount to the satisfaction of Deputy Registrar (Judicial). He is further directed to appear in this Court on each and every date of hearing.