Israr Alias Qari vs The State through Additional Advocate General, Mirpur
This application was filed under Section 426 of the Code of Criminal Procedure 1898 seeking the suspension of a seven-year sentence of simple imprisonment and fine imposed on the petitioner under Section 9-C of the Control of Narcotic Substances Act 1997. The petitioner argued that as the sentence was less than ten years and he had served almost half of it, he was entitled to bail under the principles governing offences not falling within the prohibitory clause. The State opposed, arguing that the trial court had already been lenient given the recovery of 2,460 grams of charas. The High Court of Azad Jammu and Kashmir dismissed the application, holding that the power to suspend a sentence under Section 426 of the Code of Criminal Procedure 1898 is discretionary and not wider than the power to grant bail under Section 497. The Court ruled that a sentence should generally only be suspended if there is no chance of the conviction being maintained, and since the petitioner failed to point out any patent illegality or irregularity in the trial court's judgment, suspension was unwarranted.
- Whether the power of an appellate court to suspend a sentence under Section 426 of the Code of Criminal Procedure 1898 is wider than the power to grant bail under Section 497?
- Can a convict seek suspension of sentence under Section 426 of the Code of Criminal Procedure 1898 solely on the ground of the length of the sentence without pointing out any patent illegality in the conviction?
- Under what circumstances may an appellate court tentatively assess evidence when deciding an application for suspension of sentence?
- Section 426, Code of Criminal Procedure 1898
- Section 426(1), Code of Criminal Procedure 1898
- Section 497, Code of Criminal Procedure 1898
- Section 9-C, Control of Narcotic Substances Act 1997
1. MAIN ARIF HUSSAIN, J. The captioned application has been filed under section 426, Cr.P.C., for suspension of sentence passed by the learned Additional Sessions Judge Mirpur vide order dated 24.11.2021 in the offence under section 9-C/CNSA, qua the present-petitioner has been convicted and sentenced for 07 years simple imprisonment along with fine to the tune of Rs.10,000/- (ten thousand).
2. The captioned appeal is already subjudice before this Court which is pending completion in the registry.
3. Facts necessary for deposal of the captioned application are that sub Inspector/SHO police station Thothal on 28.07.2020 reported that during the investigation of case registered under sections 3/4, 14 Prohibition (Enforcement of Hadd) an accused person named "Wahid" revealed that his brother Israr alias Qari is selling Chars Contraband near the Rathoa Haryana Bridge, whereupon, SHO along with police party proceeded towards the pointed place and found a person who on seeing the police party fled away, however, on pursuing he was apprehended and on search, in presence of police witnesses, "charas contraband" weighing 2460 grams was recovered from his possession.
4. Upon the said report a case under section 9-C/CNSA was got registered and after completion of investigation challan was submitted before the Court of competent jurisdiction. Convict-petitioner did not plead guilty and claimed trial.
5. After recording evidence and conducting necessary proceedings, learned trial Court vide judgment dated 24.11.2021, convicted the petitioner and sentenced him for the period of 07 years simple imprisonment along with fine to the tune of Rs.10000/-.
6. Through an appeal before this Court, the impugned judgment has been assailed and order of conviction has also been sought to be suspended through the captioned application filed under Section 426, Cr.P.C.
7. Ch. Muhammad Mehfooz, advocate the learned counsel representing the petitioner herein contended that undoubtedly, the petitioner has been convicted but in view of sentence awarded to the convict-petitioner, the petitioner is entitled to concession of bail. It is argued that it is an admitted position that the petitioner from the date of registration of case is within the custody and almost has served an half of the awarded punishment. The learned counsel, when was confronted graciously with the proposition as to whether any illegality or irregularity may be pointed out which my lead to the question of suspension of sentence, but the learned counsel did not bother to touch the vires of the impugned judgment, however, he argued with vehemence that as the punishment is less than 10 years and keeping in view the principle of bail, regarding the matters not falling within the prohibitory clause, petitioner herein deserves to be granted the concession of bail. The learned counsel in support of his version referred to and relied upon the case law i.e. 2000 PCr.LJ 924 and 1998 PCr.LJ 1442.
8. Conversely, the learned Additional Advocate General, while defending the impugned judgment of the Court below contended that the learned Court has already awarded less punishment as in view of the quantity of contraband recovered from the petitioner, the punishment may be extended to 14 years. It is further contended that during the pendency of trial, petitioner has not been given the benefit of bail and no case of suspension of sentence has been made out, hence, the application in hand may be dismissed.
9. Heard. Record perused.
10. Undoubtedly, power of appellate court under Section 426(1), Cr.P.C. is not limited and Court, during the pendency of appeal may suspend the sentence of a convict in an appropriate case in its discretion for good and sufficient reasons but such power of suspension of sentence and grant of bail is not wider than that under Section 497, Cr.P.C.
11. Moreover, it is celebrated principle of law that sentence under Section 426, Cr.P.C can be suspended after coming to the conclusion that at the end of the day, there would be no chance of maintainability of conviction, without making deeper appreciation of evidence. Although, sometimes, for determining the validity of conviction order, tentative assessment of evidence may be made in certain eventualities, however said exception by no means can be invoked for defeating the general principle.
12. Now we advert to the case in hand and try to find out as to whether the petitioner herein has made out a case for suspension of sentence and grant of bail or not?
13. Admittedly, on the allegation of recovery of huge quantity of chars contraband weighing 2460 grams, the convict-petitioner was apprehended and at the conclusion of the trial, he has been convicted and awarded sentence for 07 years simple imprisonment.
14. During the course of arguments, no single word or objection regarding the validity of impugned judgment has been agitated. Simply the question of bail, in view of less imprisonment than 10 years has been raised. Admittedly, the petitioner during the pendency of trial was not given concession of bail and now after conviction, in our estimation, unless and until any illegality in the impugned judgment is not pointed out, the said argument is not advantageous for the petitioner. Moreover, it is neither a case of short sentence nor it is matter of serving of substantial period of punishment, rather it is a matter of conviction awarded under Special Act which cannot be taken as usual manner. The case law referred to and relied upon by the learned counsel for the petitioner is not applicable in the case in hand as facts of the case in hand are quite distinguishable from the facts discussed in the case referred to.
15. The epitome and crux of the above discussion is that the petitioner has not made out a case for suspension of sentence and bail, therefore, the application filed under section 426, Cr.P.C. is, hereby, disallowed. A copy of this order shall be annexed with the original appeal which shall be placed before the Court for arguments on 2002.