AHMED ZIA alias BOBI and anothers vs Malik SAFI ULLAH and anothers

MIAN SHAKIRULLAH JAN, J.--- The two petitioners Ahmed Zia and Muhammad Sajid Baig after being convicted for a charge under section 302/34, P.P.C. And sentenced each of imprisonment for life, after filing an appeal against their conviction, have now filed the instant application under section 426(1-A)(c), Cr.P.C. For the suspension of their sentences and their release on bail till the decision of the appeal on the ground that despite the lapse of two years their appeal has not been decided. It may be pointed out that petitioner Muhammad Sajid Baig has previously moved an application for the suspension of the sentence on merits of the case but the same was declined by this Court on 7-10-1999.

2. The learned counsel for the petitioners has contended that in view of the provisions of section 426(1-A)(c), whereby after the expiry of two years the appellate Court shall release the convict on bail unless for the reasons to be recorded. His view point is that it is mandatory for the Court to release the convict on bail but for the reasons to be recorded. In this respect, in addition to the judgments of the High Courts, has cited judgments of the Supreme Court in cases Liaqat v. State 1995 SCM R 1819, Muhammad Yaqoob v. The State 1991 SCM R 1459, Bahadur v. The State 1997 SCM R 1183.

3. It is not only the petitioners who have filed the appeal against their conviction and sentence but the complainant also felt dissatisfied with the judgment and order of the learned trial Court with regard to the quantum of sentence and filed a revision petition vide Criminal Miscellaneous No,2 of 1998 Khalid Mahmood v. Ahmad Zia and Sajid Baig requesting this Court for the enhancement of the sentences of the two petitioners-appellants from imprisonment of life to that of death with a further prayer of confiscation of their immovable and movable property. In the judgment Liaqat v.

The State (supra) referred to by the learned counsel for the petitioners the Honourable Supreme Court while disposing of petition involving question of suspension of sentence upheld the order of the High Court in Criminal Petition No,84/L of 1995 (in which Abdul Ghafoor was a petitioner) on the ground that a revision petition for the enhancement of sentence has been filed and that the provisions of section 426(1-A)(c), Cr.P.C. Do not apply to appeals involving punishment of death.

The relevant portion of which on page 1829 it was held:-- "In Criminal Petition No,84/L of 1995 the High Court declined bail to petitioner on the ground that a notice of enhancement of sentence to death has been issued to him by the Court in Criminal Revision No,154 of 1992. This reason has no nexus with the merits of the case. It is also not disputed that provisions of section 426(1-A), .Cr.P.C. Do not apply to appeals involving punishment of death.

We, A therefore, see no reason to interfere with the above order of the High Court. Criminal Petition No,84/L of 1995 is, accordingly, dismissed and leave to appeal is refused."

4. If there are judgments on one hand of the Honourable Supreme Court or the High Court suspending the sentences of the convicts, then there are judgments of the Honourable Supreme Court and of the High Courts on the other side whereby such a prayer of the convict has been declined on various grounds e.g. The fixation of the appeal for hearing in the near future. In Zulfiqar Muhammad Tufail v. State 1981 SCM R 727, Manzoor Hussain v. State 1982 SCM R 357, Abdur Rashid v.

State 1988 SCM R 149 (referred to in the aboyementioned judgment) and Shah Baz v. State 1992 SCM R 1903 on the ground to avert commission of any further offence by the convict and even on merits in the case Muhammad Akram v. State 1994 SCM R 277.

5. This Court while dismissing a similar application in criminal Appeal No,168 of 1996 Salim Khan v.

State on 22-9-1996 of convict and relying on the judgment of the case Abdul Razaq v: State 1993 SCMR 234 has observed:- "The contention has not impressed us because the words 'for reasons to be recorded by it in writing' appearing after the word ' shall' leave no room for doubt that the discretionary power of the appellate Court has not been taken away altogether and it is still vested with the power to decline suspension of sentence after recording reasons. Besides, the contention if accepted would imply automatic release on bail in all such cases."

6. Consequently, we are not inclined to accede to the prayer of the petitioners by suspending the sentence and granting them bail. The petition is dismissed.