IFTIKHAR vs The STATE
This matter arises from a miscellaneous application filed under Section 426 of the Code of Criminal Procedure 1898, whereby the appellant sought suspension of his conviction and release on bail pending the final disposal of his criminal appeal against the judgment dated 19.04.2016 passed by the IX Additional Sessions Judge, Karachi West, convicting him under Section 23-A(1) of the Sindh Arms Act, 2013, and sentencing him to three years rigorous imprisonment. The core legal question was whether the appellant made out a case for suspension of sentence and grant of bail pending appeal, given the arguable nature of contradictions in the evidence, the unlikelihood of the appeal being heard in the near future due to a heavy backlog, and the fact that he did not misuse bail during the trial. The Sindh High Court held that where an appellant has an arguable case on merits, has not misused the concession of bail during trial, and the appeal is unlikely to be heard soon due to heavy backlog, the sentence may be suspended and bail granted under Section 426, Cr.P.C. The key principle laid down is that the existence of an arguable case coupled with delayed disposal of the appeal and non-abuse of prior bail concessions warrants the suspension of sentence during the pendency of the appeal.
- Whether the sentence can be suspended and bail granted under Section 426 of the Code of Criminal Procedure 1898 when the criminal appeal is unlikely to be heard in the near future?
- Does an arguable case on merits arising from material contradictions in witness statements justify suspending a conviction pending appeal?
- Is the absence of any apprehension of abscondence and non-misuse of bail during trial a valid ground for relief under Section 426, Cr.P.C.?
- Section 426, Code of Criminal Procedure 1898
- Section 23-A(1), Sindh Arms Act 2013
ORDER
'SHAHNAWAZ TARIQ, J.---Through captioned miscellaneous application under section 426, Cr.P.C., appellant Iftikhar has impugned the judgment dated 19.04.2016, passed by the Court of IX Additional Session Judge, Karachi West, whereby appellant was convicted for the offence punishable under Section 23-A(1) Sindh Arms Act, 2013.
2. Learned counsel for appellant, at the very outset, contended that appellant is innocent and has falsely been implicated by the complainant in instant crime; that PWs are official witnesses and there are series of contradictions in their cross-examination, hence their credibility has been shattered but learned trial Court has not properly examined the material available on record nor considered the material contradictions prudently, while passing the impugned judgment; that appellant has a good case on merits, but since six months, he is behind the bars, hence he may be released on post-arrest bail till final disposal of instant criminal appeal.
3. Learned A.P.G. Considering the quantum of sentence, extended his no objection.
4. Heard arguments advanced by the learned counsel for the parties and have perused the record which emanates that appellant was challaned to face his trial for the offence of possessing unlicensed arm before learned trial Court and after conclusion of trial, appellant was convicted and sentenced to undergo for R.I. 3 years and to pay the fine of Rs,5000/- and in case of default, he shall further undergo for S.I. 6 months.
5. Indeed, contention agitated by learned counsel for the appellant that evidence adduced by the prosecution is not up to the mark due the material contradictions in statements of PWs and learned trial Court has failed to consider the said contradictions prudently, while convicting the appellant, which deserves serious consideration and same could not be examined without proper perusal of entire evidence which is not possible at the moment. It is significant to refer that during, the trial, appellant was enlarged on bail but he neither misused the concession of bail nor spoiled the proceedings of the trial in any engineered manner which reflects that there is no apprehension of abscondence of the appellant and on merits he has an arguable case which alone is sufficient for consideration of plea of bail. Moreover, appellant is behind the bars for six months but due to pendency of the heavy backlog of the cases, instant appeal is still pending for hearing and there is no likelihood of final disposal of instant appeal in near future.
6. Considering the above circumstances, instant application under section 426, Cr.P.C. Stands allowed as prayed and operation of the impugned judgment dated 19.04.2016, passed by the learned trial Court is suspended. Consequently, applicant is admitted to post-arrest bail on the furnishing solvent surety in the sum of Rs,50,000/- with PR bond in the like amount to the satisfaction of Nazir of this court.
' This appeal has already been admitted, however, paper book has not yet been prepared.
Appellant is directed to pay cost of paper book in compliance of earlier order. Office is directed to prepare paper book and fix main appeal in the court for regular hearing on 29.11.2016 as per roster.
' To come upon 29.11.2016.