MUHAMMAD KHURSHID vs WAZIRZADA And Other
This matter concerns a petition for leave to appeal against an order of the Peshawar High Court, which granted bail to respondents convicted of various offenses, including murder under Section 302, Pakistan Penal Code 1860. The core legal question was whether the High Court correctly exercised its discretion under Section 426, Code of Criminal Procedure 1898, by granting bail to convicted persons based on the fact that the trial court had erroneously awarded a five-year sentence for a Section 302 offense, rather than the mandatory death or life imprisonment. The Supreme Court held that the trial court committed a legal error in sentencing, and the High Court further erred by applying the criteria of Section 497, Code of Criminal Procedure 1898—which governs pre-trial bail—to a post-conviction bail application under Section 426. Consequently, the Supreme Court allowed the appeal, set aside the High Court's order, and cancelled the bail. The judgment establishes that bail under Section 426 cannot be justified by relying on an illegal, lenient sentence imposed by a trial court in contravention of mandatory sentencing provisions.
- Can bail be granted under Section 426 of the Code of Criminal Procedure 1898 based on an illegally lenient sentence imposed by a trial court?
- Does the prohibitory clause of Section 497 of the Code of Criminal Procedure 1898 apply to bail applications filed under Section 426 of the Code of Criminal Procedure 1898?
- Is a sentence of five years imprisonment for an offense under Section 302 of the Pakistan Penal Code 1860 legally valid?
- Section 426, Code of Criminal Procedure 1898
- Section 302, Pakistan Penal Code 1860
- Section 307, Pakistan Penal Code 1860
- Section 427, Pakistan Penal Code 1860
- Section 447, Pakistan Penal Code 1860
- Section 148, Pakistan Penal Code 1860
- Section 149, Pakistan Penal Code 1860
- Section 497, Code of Criminal Procedure 1898
ORDER
ASLAM RIAZ HUSSAIN, ACTG. C.J.--Muhammad Khurshid petitioner seeks leave to appeal against the order of the Peshawar High. Court, dated 31-3-1985, whereby the respondents were granted bail under section 426, Cr. P.C.
2. The respondents alongwith another were tried for offences under sections 302/307/427/447/148 and 149, P.P.C., inter alia, for the murder of Mukhtar Ahmad and firing on some others. The learned trial Court (Sessions Judge Bannu) found them guilty and convicted them as follows:-
(1) Under section 302, P.P.C. Death sentence to Abdul Razzaq.
(2) Remaining accused i.e. Respondents Nos. 2 to 8 under sections 302, P.P.C. And 307 P.P.C. 5 years R.I. And a fine of Rs.2,000 each or in default to undergo further 6 months R.I. Under section 427, P.P.C.
2 years R.1. Each; under section 148 P.P.C. 2 years R.I. Each; and under section 447, P.P.C. 3 months R.I.
Each.
3. All of them filed appeal before the High Court. The respondents also filed an application under section 426, Cr.P.C. For suspension of their sentences. The learned High Court vide the impugned order granted bail.
4. The learned counsel for the petitioner has argued firstly that since the learned trial Court also convicted the respondents under section 302, P.P.C., the only sentence that could have been awarded to them was either death or imprisonment for life. But the learned trial Court has erred in awarding them minor sentence of 5 years each, which is wholly contrary to law. He submitted secondly that the learned High Court was influenced, while releasing the respondents on bail, by the fact that they were sentenced to only to 5 years R.I., and has completely omitted to notice that this sentence was in contravention of the provisions of section 302, P.P.C. Under which they had been convicted. The learned counsel submitted further that the High Court while granting bail to the respondents appears to have been under the impression that the application before the learned Court was one under section 497, Cr.P.C. Which is applicable in the case of accused persons have not yet been tried or convicted, and not under section 426 Cr.P.C. Which applies to convicted accused. For this contention, the learned counsel for the petitioner relied on the following observation in the impugned order:- ".. . Their case, for purpose of bail is argueable because sentence awarded to them is not covered by the prohibitory clause of section 497, Cr.P.C."
5. We have also heard the learned counsel for the respondents, who is present in response to the notice issued on the last date of hearing, as well as the learned A.A.-G. We, therefore, convert this petition into appeal and proceed to dispose it of as such.
6. The learned A.A.-G. Supported the prayer for cancellation of bail.
7. The learned counsel for the respondents, however, submitted that the respondents had rightly been granted bail in view of the fact that the sentences awarded to them under section 302/307, P.P.C. Were short i.e. 5 years' R.I. Each. He could not, however controvert the contentions raised by the petitioners learned counsel, that the minimum sentence to' be awarded by the trial Court under section 302, P.P.C. Is imprisonment for life and that the learned trial Court had erred in awarding them a lesser sentences of 5 years R.I. Each under that section.
Having given our anxious consideration to the matter we feel there is considerable weight in the contentions raised by the petitioners' counsel. As such we allow the appeal, set aside the impugned order of the High Court and cancel the bail granted to the respondents by the High Court.