BARKAT HUSSAIN vs THE STATE

1. ' SAIDUZZAMAN SIDDIQUI, J.---The petitioner was tried alongwith several others by the Special Court No, 1 (Punjab) for Suppression of Terrorist' Activities, Rawalpindi and was convicted under section 302/34, P.P.C. By judgment dated 11-3-1991 and was awarded life imprisonment on three counts with fine of Rs,50,000 on each count and in default to undergo further R.I. For six months. He was also convicted under section 324/34, P.P.C. And sentenced to 3 years' R.I. With fine of Rs,1,000 or in default of payment of fine to suffer further R.I. For one month. The sentences awarded to the petitioner were to run consecutively.

2. ' The petitioner filed appeal against his conviction and sentence being Appeal No, 202 of 1991 on 18- 3-1991 before Lahore High Court. Since the appeal could not be decided within the statutory period of 2 years provided under section 426(1-A), (C), Cr.P.C., he applied for suspension of the sentences and enlargement on bail. The application for suspension of sentence and grant of bail was rejected by the learned Judges of the High Court as follows:-- "There is no ground for suspension of sentence. This is an old case which is pending since 1991. The office is directed to complete the Paper Book within one month.

2. The main appeal be fixed in the 3rd week of March, 1995."

3. The learned Additional Advocate-General who is present in Court on notice in the case does not dispute that as directed by the Court the appeal of the petitioner came up for hearing before the Court in the third week of March, 1995 but it could not proceed as the list was cancelled. It is also not disputed that thereafter the appeal has not been fixed for hearing before the High Court.

4. ' Firstly, the learned Judges of the High Court while refusing to suspend sentence have given no ground for refusing application for suspension of the sentence and enlarging the petitioner on bail.

5. Mere mention in the order that there is no ground for suspension of sentence is not enough for refusing the bail and suspension of the sentence under section 426, Cr.P.C. On the ground of statutory delay. Secondly, the fact noted in the impugned order that this is an old case pending since 1991, is a circumstance which should have been construed as a ground favorable to accused/petitioner rather than treating it as a circumstance for refusing bail to the petitioner. The learned counsel for the petitioner has relied on the case Altaf Hussain Shah v. The State (1994 SCM R 480), wherein in similar circumstances where appeal was directed by the High Court to be fixed for regular hearing could not be disposed of, was considered by this Court as a circumstance entitling the appellant to the grant of bail. The relevant observations were as follows:-- "2: Notice was issued to the State and we have heard the learned counsel for the parties. There is no denying the fact that statutory period for disposal of the appeal has passed, but so far the appeal has not been decided. The petitioner was convicted by the learned Additional Sessions Judges by his judgment dated 27-6-1990. In spite of the direction given by the High Court the appeal has not been disposed of. In these circumstances, we convert the petition into an appeal and allow it. The petitioner is admitted to bail on furnishing two sureties in the sum of Rs,10,000 each to the satisfaction of the Assistant Commissioner, Bhakhar."

6. The learned Additional Advocate-General though supported the order of High Court but was unable to distinguish the case relied by the learned counsel for the petitioner which applied with all force to the circumstances of the present case. We, accordingly, convert this petition into appeal, accept the same, set aside the order of High Court and admit the petitioner to bail in the sum of Rs, one lac with two sureties in the like amount to the satisfaction of Assistant Commissioner, Rawalpindi.