ALI MUHAMMAD Versus STATE

This is an application under section 426, Cr.P.C. with prayer to suspend the conviction and sentence vide judgment, dated 12-11-1997 delivered by the Court of Sessions Judge, Kalat till the appeal is decided which was received on 19-11-1997 in this Court and admitted for regular hearing on 18-12-1997 and also with another prayer to grant ball to both the appellants in such sum as deemed fit and proper in the circumstances of the case.

Applicants/appellants have been convicted under section 396, P.P.C., as tazeer and sentenced to R.I. for ten years and fine of Rs. two lacs each, in default of payment to further undergo for one year's R.I. each by the Trial Court.

2. I have heard the learned counsel for appellants/applicants and State. Story of the prosecution, succinctly, is that first informer Muhammad Hashim (P.W.1) appeared at Police Station Mastung on 4-3-1995 and reported that his son Akram Khan, the deceased, worked as S.H.O. police station Kalat in the rank of Sub-Inspector of police. He had come on Eid leaves and on 2-3-1995 he was sleeping alongwith his family in a different room in the night of 2/3 of March. At about 3 a.m. the sleeping members got awakened on the noise of firing from the room of his son. They rushed towards the room, on the door of which room wife of Akram was standing. She informed that while they were sleeping four armed culprits entered the room after breaking the door and two of them fired with KKs towards Akram who got wounded at stomach and chest and he was lying unconscious. Akram was immediately removed towards hospital, but died. All the four culprits had muffled faces and none could be identified. The culprits. while leaving, had taken away with them Government's revolver 38 bore alongwith live cartridges and the belt. The suspicion was shown in Hafiz Yar Muhammad in view of the fact that the deceased had arrested that culprit alongwith other accomplices in many cases of decoity. Hafiz Yar Muhammad had become a fugitive of law later on, and used to send threats of murdering the deceased.

3. The learned counsel for applicants has contended that appellant - Ali Muhammad was arrested on 27-3-1995 and his confessional statement under section 164, Cr.P.C. was recorded on 11-4-1995 which has become the sole basis of the conviction and sentence for a dacoity with murder which is otherwise a blind murder. Since statement of applicant Ali Ahmed was recorded 14 days after arrest, therefore, it was obtained under torture and is of no value in the eyes of law; that Mst. Jameela w/o the deceased Akram (P.W.6) identified applicant Jameel Ahmed in the Court but otherwise no identification parade was held, therefore, she cannot be believed; that the evidence of Akbar Khan (P.W.2), one of the brothers of deceased is not a direct evidence to connect applicant Ali Ahmed with the offence; that the original person who was suspected in F.I.R. was Hafiz Yar Muhammad and he has been acquitted; that the magistrate who recorded statement of applicant Ali Ahmed under section 164, Cr.P.C. is a second class magistrate, hence he was not a competent person to have recorded such statement and his deposition as P.W.11 needs to be discarded. The learned counsel for State has vehemently opposed this application for being premature. He has contended that the magistrate who recorded statement under section 164, Cr.P.C. although that of second class, way specially empowered in this behalf by the Provincial Government and then no suggestion was made by the defence about incompetence of this witness namely Naseer Ahmed (P.W.11); that this witness has admitted that applicant Ali Ahmed had remained in the police remand for 14 days and that at the time of confessional statement he was asked clearly as to whether torture or murder and his being a journalist is of no avail to him; that at the bail stage only a tentative assessment of evidence is to be made and that does not confer any right of release on bail under section 426, Cr.P.C.

4. Section 426, Cr.P.C. reads as under:

" Suspension of sentence pending appeal; Release of appellant on bail .--?(1) Pending any appeal by a convicted person, the Appellate Court may, for reasons to be recorded by it in writing, order that the execution of the sentence or order appealed against be suspended and, also, if he is in confinement, that he be released on bail on his own bond.

(1-A) An Appellate Court shall, unless for reasons to be recorded in writing if otherwise directs, 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;

(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.

(2) The power conferred by this section on an Appellate Court may be exercised also by the High Court in the case of any appeal by a convicted person to a Court subordinate thereto.

(2-A) Subject to the Provisions of section 382-A, when any person other than a person accused of a non-bailable offence is sentenced to imprisonment by a Court, and an appeal lies from that sentence, the Court may, if the convicted person satisfies the Court that he intends to present an appeal, order that he be released on bail, for a period sufficient in the opinion of the Court to enable him to present the appeal and obtain the orders of the Appellate Court under subsection (1) and the sentence of imprisonment shall, so long as he is so released on bail, be deemed to be suspended:

(2-B)Where High Court is satisfied that a convicted person has been granted special leave to appeal by the Supreme Court against any sentence which it has imposed or maintained, it may, if it so thinks fit orders that pending the appeal the sentence or order appealed against be suspended, and also, if the said person is in confinement, that he be released on bail.

(3) When the appellant is ultimately sentenced to imprisonment, or imprisonment for life, the time during which he is so released shall be excluded in computing the term for which he is so sentenced. "

Clearly then clause (c) of subsection (1-A) to section 426, Cr.P.C. is applicable as a mandatory provision. I am not bound by that mandate as the imprisonment of both the applicants exceeds seven years and that memo of appeal was received only one month and seven days ago on 19-11-1997. So far as decision on the basis of tentative assessment of evidence is concerned, I find that no allegation of torture or inducement has even been suggested to the magistrate having recorded the confessional statement of applicant Ali Ahmed. No suggestion has been made to him regarding his being an incompetent magistrate to record such a statement. Ali Ahmed's statement, although resiled, is clearly involving him and applicant Jameel Ahmed as abettors. It reads:

This confessional statement is corroborated by Akbar Khan (P.W,2) to the extent of Ali Ahmed's involvement as abettor as he wanted to know the 8 whereabouts of deceased Akram to pass the information to the explicit culprits, This witness has deposed as under and inspires confidence.

So far as the case of Jameel Ahmed is concerned, even if he has not undergone identification parade, yet the confessional statement of Ali Ahmed coupled with the deposition of Mst. Jameela (P.W.6) is enough to indicate that this is not the stage where he has attained his entitlement to be released on bail under section 426, Cr.P.C. Deposition of Mst. Jameela (P.W.6) reads:

So far as the allegation that the real culprits have been acquitted is patently incorrect as the impugned judgment has clearly mentioned their involvement in the following final three lines: ?

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"The case against absconding accused Hafiz Yar Muhammad Zabar Khan and Rehmatullah be kept on dormant their permanent warrant be issued. " ?

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5. Consequently, I do not find this case fit to order that the execution of the sentence or order appealed against be suspended and that the applicants be released on bail or on their own bond. Application fails.

H.B.T./1181/FSC ??????????????????????????????????????????????????????????????????????????????? Application rejected.