RIAZ HUSSAIN vs THE STATE and anothers

' RANA BHAGWAN DAS, J.---Leave to appeal is sought against High Court's order dated 19-12-2000, whereby respondent Abid Hussain was admitted to bail, pending hearing of his appeal against conviction under sections 302/324/148/149. He was tried alonwith co-accused Khalid Pervez, Manzoor Ahmad, Zafar Abas, Muhammad Safdar and Ashiq Hussain. Apart from Abid Hussain, Khalid Pervez and Manzoor Afimad were convicted and sentenced to imprisonment for life and R.I.

For 7 years vide judgment dated 25-3-2000, in addition to the payment of compensation of Rs,10,000 each to the legal heirs of Khan Muhammad deceased. Remaining accused were, however, acquitted.

2. Respondent appealed against conviction and applied for suspension of his sentence, which was seriously opposed by State but learned Judge in Chamber of Lahore High Court suspended his sentence, subject to furnishing of bail bond in the sum of Rs,50,000 with two sureties, on the grounds that second view of conviction and sentence awarded to the respondent was possible; that the respondent was an educated person, had no motive to commit the murder as well as murderous assault and also that he was found innocent during the course of investigation. Learned Judge relied upon the dictum laid down in Altaf Hussain v. The State (PLD 2000 Lahore 216), expressing the view that opinion of the Investigating Agency can be taken into account and it cannot be thrown out altogether. Through this petition complainant seeks to impugn the vires of the order.

3. We have heard learned counsel for the parties while learned Additional Advocate-General entered appearance on behalf of the State. It is rightly contended that opinion of the Investigating Officer finding the respondent innocent in respect of the charge against him is totally irrelevant after the finding of guilt recorded, after evaluation of evidence by a competent Court of law.

Learned counsel urged that second view on assessment of evidence would be possible almost in all cases and this would hardly furnish a sound ground for suspension of sentence. Likewise a convict being educated and having no motive to commit a crime per se may not constitute basis for grant of bail, pending the hearing of an appeal against conviction.

4. Conversely, Mr. M.A. Zafar, Advocate Supreme Court learned counsel for the respondent vehemently urged that ocular evidence being in conflict with the medical evidence and the respondent having no motive for the commission of the crime were rightly considered as sufficient grounds for suspension of the sentence and release of the respondent on bail, In this respect learned counsel attempted to refer to the evidence of the Medical Officer as well as P.Ws. Riaz Hussain and Abdul Majeed.

5. We are afraid, we cannot enter into critical analysis of the evidence at this stage, as it would be essentially for the appellate Court to evaluate and appraise the evidence at the time of hearing the appeal. In our view it would be neither proper nor just to comment upon the merits of the evidence, after a verdict of guilt having been recorded by a competent Court of law. We are also of the view that opinion of the Investing Officer with regard to the guilt or innocence of the respondents is irrelevant and of no avail to a convict for the suspension of his sentence.

6. Learned counsel lastly urged that it is a settled practice of this Court that it does not interfere with the exercise of discretion by High Court, more particularly with regard to interlocutory orders.

He relied upon Sultan Khan v. Amir Khan (PLD 1977 SC 642). There can be no cavil with the proposition advanced by the learned counsel but in exceptional cases where the exercise of discretion is arbitrary, perverse or contrary to the settled principles of law this Court would not hesitate to interfere with the exercise of discretion. We are inclined to hold that, learned High Court appears to have exercised its discretion in a manner which was not warranted by law. We would, therefore, convert this petition into appeal and accept the same with the result that impugned order is set aside. Learned High Court is, however, required to dispose of the criminal appeal preferred by the respondent with utmost expedition and preferably within 90 days from the date of receipt of this order.

Bail cancelled.