ORDER SHEET
IN
THE HIGH COURT OF SINDH BENCH AT SUKKUR__________________
C.P No. D – 115 of 2015
_______________________________________________________________ DATE ORDER WITH SIGNATURE OF
JUDGE _______________________________________________________________
For hearing of MA 752/2016
(B.A)
26.05.2016
Mr.
Muhammad Sachal R.Awan
Advocate for appellant Khadim Hussain.
Mr.
Zulifqar Ali Jatoi, D.P.G
...............
It is, inter alia, contended
by the learned counsel for the appellant namely Khadim
Hussain son of Dhani Bakhsh
Chandio, that appellant is innocent, whose name was
mentioned in the F.I.R, however, no specific role whatsoever
has been assigned to the appellant in the commission of alleged offence. It has
been contended by the learned counsel that complainant in the above F.I.R, Mst. Kouri and another P.W Akan
who are reportedly eye-witnesses and victim of the alleged incidence, during
their evidence, have not implicated the present appellant in the commission of
the alleged offence, whereas, there is no material or evidence whatsoever
available with the prosecution to connect the present appellant with the
present crime. In spite of such fact, per learned counsel, the present appellant has been
convicted by learned trial Court on the basis of surmises and conjectures. Learned
counsel for the appellant further submits that though the appellant has a prima
facie good case of his acquittal as there are certain illegalities and errors
committed by the trial Court while convicting the present appellant along with
other co-accused persons, however there
is no likelihood that the instant appeal, which has been recently admitted to
regular hearing on 17.02.2016, will be taken for hearing at an early date,
keeping in view the pendency of large number of criminal appeals at Sukkur bench, hence prays that the request of the appellant
for his release on bail by suspending the sentence may be granted. Learned
counsel for appellant has contended that appellant was on bail during trial, who is sent to Jail pursuant to impugned judgment. Per
learned counsel, in the case reported as P L D 2008 Lahore 74 (Allah Din and
others Versus Special Judge Anti-terrorism Court No.1 Lahore and others)
suspension of sentence during pendency of the appeal was allowed and the
appellants were released on bail subject to furnishing surety. Learned counsel for appellant has also relied
upon case reported as 2002 P.Cr.L.J 748 (Yasin and others Versus The State)
and P L D 2008 Lahore 74 (Allah Din and others Vs. Special Judge Anti-Terrorism
Court No.1 Lahore and others.
2. While confronted with the submissions
made by learned counsel for appellant, the learned D.P.G has not controverted
the factual and legal position as stated by learned counsel for appellant that
with regard to release the appellant on bail by suspending the sentence, however,
submits that since suspension of sentence under section 426 Cr.P.C
is barred in terms of section 25(8) of Anti-terrorism Court Act, 1997 , therefore,
such request can be made by filing Const. Petition in appropriate cases and not by filing application under section 426 Cr.P.C. It has been submitted that instant application
under section 426 Cr.P.C may be converted into
constitutional petition and the appellant may be released on bail subject to
furnishing solvent surety by suspending sentence during pendency of the appeal.
3. We have heard learned
counsel for the appellant
and the learned D.P.G and perused the record as well as the impugned
judgment in the instant appeal which reflects that the appellant namely Khadim Hussain son of Dhani Bux Chandio has not been
implicated by the complainant and the eye witnesses in the commission of
alleged offence, whereas, as per contents of F.I.R , his mere presence has been
shown. However, the learned trial Court in the absence of any incriminating
material or evidence against appellant has convicted the appellant along with
other accused persons on surmises. Accordingly, we are of the opinion that
appellant has made out the case for his release on bail by suspending the
sentence during pendency of instant appeal, as there is no possibility that
instant appeal may be decided at an early date, in view of pendency of number
of criminal appeals pending before this Court. As regards the contention of
learned D.P.G with regard to application of section 426 Cr.P.C,
in view of the provision of section 25(8) of Anti-Terrorism Act, 1997, we may
observe that any provision of law, which is intended to either take away the
jurisdiction of the Court or to restricts the same, which jurisdiction
otherwise is available to a Court under the constitution or creates any impediment to grant
relief to an accused, for which he is otherwise entitled under the constitution
or the law, cannot be construed as absolute bar for superior Courts
particularly in matters relating to life and liberty of a citizen. Accordingly, we would convert CMA No.752/2016,
filed under section 426 Cr.P.C, into a Constitutional
Petition and hereby suspend the sentence in respect of the appellant namely Khadim Hussain Chandio, during
pendency of the appeal, who is admitted on bail subject to furnishing solvent
surety in the sum of Rs. 200,000/- (Two lacs) and PR bond in the like amount to the satisfaction of
Incharge Additional Registrar of this Court. Office
is directed to allot the number to constitutional petition, which stands
allowed in the above terms.
Appeal may be fixed for
hearing after summer vacation as per roster.
J
U D G E
`
Irfan/PA J U D G E