SAID WALI vs Haji NAZIR GUL and another
This application was filed under Section 426 of the Code of Criminal Procedure 1898 seeking suspension of the execution of a sentence of life imprisonment imposed upon the appellant, Said Wali, following his conviction under Section 302 of the Pakistan Penal Code 1860. The core legal question was whether the delay in the disposal of the appellant's criminal appeal beyond two years automatically entitled him to the suspension of his sentence and release on bail under Section 426(1-A) of the Code of Criminal Procedure 1898. The Peshawar High Court dismissed the application, holding that mere delay in the disposal of an appeal does not create an automatic right to bail. The Court clarified that the use of the word "shall" in Section 426(1-A) does not remove the appellate court's discretion, as the statute explicitly requires the court to record reasons for its decision. Consequently, the Court affirmed that it retains the power to decline suspension of sentence based on the facts of the case, such as the prima facie connection of the convict to the crime and the administrative constraints of the judiciary.
- Does a delay in the disposal of a criminal appeal beyond two years create an automatic right to bail under Section 426(1-A) of the Code of Criminal Procedure 1898?
- Does the use of the word 'shall' in Section 426(1-A) of the Code of Criminal Procedure 1898 remove the appellate court's discretion to deny suspension of sentence?
- Is an appellate court required to record reasons when denying an application for suspension of sentence under Section 426 of the Code of Criminal Procedure 1898?
- Section 426, Code of Criminal Procedure 1898
- Section 302, Pakistan Penal Code 1860
- Section 382-B, Code of Criminal Procedure 1898
- Section 544-A, Code of Criminal Procedure 1898
- Section 426(1-A), Code of Criminal Procedure 1898
' This application under section 426, Cr.P.0 for suspension of execution of sentence has arisen from Cr.A. No,4 of 1997 filed by one Said Wali on 4-1-1997. The appellant was convicted under section 302, P.P.C. By the learned Additional Sessions Judge Charsadda, vide judgment dated 11-12-1996, and sentenced to imprisonment for life, with benefit of section 382-B, Cr.P.C. He was also burdened with payment of a sum of Rs,50,000 as compensation to the legal heirs of the deceased within the contemplation of section 544-A, Cr.P.C.
2. Suspension of sentence is sought on the ground that the appellant has been sentenced to imprisonment for life but his appeal has not been decided within a period of two years of his conviction.
3. It was contended by the learned counsel for the petitioner with vehemence that in view of delay in disposal of his appeal the appellant was well within his right to seek bail under section 426(1-A), Cr.P.C.
4. The learned Additional Advocate-General, on the other hand, opposed the application.
5. We are not inclined to allow the application because disposal-related delay does not create any right to bail as held in Abdur Razzaq and others v. The State (1983 SCM R 234). Reference may also be made to Shahbaz v. The State (1992 SCM R 1903) wherein it has been observed that inordinate delay did not create any right to the suspension of the sentence under section 426, (1-A) Cr.P.C.
Because if this argument is accepted it would imply automatic release on bail of convicts in all cases which, in any case, is not the intention of the law.
6. No doubt the language employed in subsection (1-A) of section 426, Cr.P.C. Contains the expression "shall" but the petitioner cannot make any mileage from it as the words "for reasons to be recorded by it in writing" appearing after the said expression leave no room for doubt that the discretion 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.
7. As regards the reasons for rejecting the application it would suffice to say that the appellant is prima facie connected with the crime for which he was charged and convicted and in view of huge backlog, horrendous increase in the volume of litigation and present working strength of the Court it is not possible to dispose of the appeal within the prescribed period. However, it will be fixed for final hearing as soon as possible. In the result, the application is dismissed.
Cited by 1 case
- ALLAHANDO KALHORO vs The STATE 2014 PLD Sindh 483