ORDER SHEET

 

IN THE HIGH COURT OF SINDH BENCH AT SUKKUR

Cr. Appeal No. S- 66 of 2022

 

Date of hearing

Order with signature of Judge

 

1.     For orders on MA No.4259/2022 (B.A)

2.     For hearing of bail application.

17.10.2022.

Mr. Achar Khan Gabol, Advocate for appellant / convict.

Syed Sardar Ali Shah, Additional Prosecutor General.

                                    -,.-.-.--.-

 

                                                O R D E R.

NAIMATULLAH PHULPOTO, J.  Appellant Syed Mukhtiar Ahmed was tried by learned Special Judge Anti-Corruption (Provincial) Sukkur, Division at Sukkur in special case No. 03 of 2018, arising out of crime No. 01/2018 of P.S ACE Sukkur for offence under sections 161 PPC read with section 5(2) Act-II of 1947.  On conclusion of trial, vide judgment dated 29.09.2022, appellant was convicted for offence U/S 161 PPC to suffer R.I for two years and to pay fine of Rs. 20,000/-, in case of default in payment of fine, appellant was directed to suffer S.I for three months. Appellant was also convicted for offence U/S 5(2) of Prevention of Corruption Act-II of 1947 to suffer R.I for two years and to pay fine of Rs. 20,000/- in case of default in payment of fine, appellant was directed to suffer S.I for three months.

2.       Appellant preferred appeal and along with appeal, an application for suspension of sentence is moved. Notice of said application was issued to Additional Prosecutor General.

 

3.       Mr. Achar Khan Gabol learned advocate for appellant mainly contended that sentence is short one and hearing of appeal would take long time and yet the paper book is not prepared. In support of his contentions he has relied upon case of Abdul Hameed v. Muhammad Abdullah and others (1999 SCMR 2589).

 

4.       Learned Addl.P.G for the State recorded no objection for suspension of sentence during pendency of appeal on the ground of sentence of 02 years is short one.

 

5.       After hearing learned counsel for the parties, I have carefully perused the impugned judgment. From perusal of judgment, it transpires that appellant has been convicted and sentenced for two years R.I. I am inclined to suspend the operation of the Judgment passed by the trial Court during the pendency of this appeal for the reasons that appellant Syed Mukhtiar Ahmed was on bail before the trial Court during trial and sentence of two years R.I is short sentence as held by Hon’ble Supreme Court in the case of Abdul Hameed vs. Muhammad Abdullah (1999 SCMR 2589). It is held as follows:

 

“ On the other hand, Mr. S.M.Masud, learned advocate Supreme Court, for the petitioner, has argued that the learned Additional Sessions Judge without putting to the petitioner the notice as to the enhancement of the sentence and without hearing the arguments, enhanced the imprisonment for three years to five years and the amount of Rs. 5,000/- to Rs. 10,000/-. Without going to the question, whether any notice was issued for the enhancement by the learned Additional Sessions Judge (as according to the State counsel such a notice was issued). We are inclined to hold that since the sentence was short and as the sentence was enhanced by the learned Additional Sessions Judge from three years to five years, it was fit case in which the learned Judge in Chambers should have exercised the discretion in favour of the convict. We convert the above petition into appeal and admit the petitioner to bail in the sum of Rs. 2,00,000/- (two lacs) with one surety in the like amount to the satisfaction of the trial Court”.

 

 

6.         Since the sentence of two years R.I is short one. Therefore, sentence awarded to the appellant is suspended during pendency of appeal subject to his furnishing solvent surety in the sum of Rs. 50,000/- (Fifty thousand) with PR bond in the like amount to the satisfaction of Additional Registrar of this Court.

 

7.       MA No. 4259 of 2022 stands disposed of accordingly while the instant Criminal Appeal is adjourned to 14.11.2022.

 

                                                                    JUDGE

Irfan/PA

 

 

Through this bail application, applicant Saeed Ghani Mahesar seeks his release on post-arrest bail in crime No. 119 of 2015 of Police Station Baberloi under sections 364, 511, 506/2, 148, 149 PPC.

2.         After registration of the case, it was challaned and subsequently was assigned to 2nd Additional Sessions Judge Khairpur Mir’s vide sessions case No.564/2016 Re: State vs. Sikandar Shah and others. The applicant as well as co-accused Syed Sikandar Ali Shah, Shabbir Ahmed, Abdul Ghaffar, Muhammad Asif and iftikhar had filed joint pre-arrest bail application No. 96/2016 before the Court of Sessions Judge, Khairpur wherefrom it was assigned to 4th Additional Sessions Judge, Khairpur Mir’s where all the accused were granted ad-interim pre-arrest bail on 12.01.2016. However, after hearing the parties it was confirmed on 06.08.2016 except the bail of co-accused Shabbir Ahmed as he was not in attendance before the Court.

3.         After grant of pre-arrest bail the applicant did appear before the trial Court; however, he remained absent from 07.04.2018 to 15.04.2022, however, the trial Court by cancelling the bail bond of applicant had issued NBWs against him. The applicant after lapse of four years when learnt about issuance of NBWs against him he voluntarily surrendered before circuit Court of this Court at Larkana through 1st Criminal Bail Application No. 100 of 2022 on 04.03.2022. On 04.03.2022 he was granted protective pre-arrest bail for seven days. The learned bench of this Court had also suspended the operation of NBWs issued against him by the trial Court. He, therefore, filed second pre-arrest bail application No. 514 of 2022 before the Court of Sessions Judge, Khairpur Mir’s  where he was granted ad-interim bail on 07.03.2022. During pendency of said bail application the applicant was arrested in some other criminal case, therefore, his counsel did not press the bail application which was dismissed as not pressed by the Curt of Additional Sessions Judge-II Khairpur Mir’s vide order dated 15.04.2022, therefore, the applicant filed post arrest bail application before the trial Court which too was turned down by order dated 09.05.2022. Hence this bail application.

4.         Learned counsel for applicant submits that applicant after grant of pre-arrest bail, was appearing before the trial Court regularly. However, due to his involvement in other case, the applicant went underground, therefore, the circumstances gathered were beyond his control hence absconsion is no ground for rejecting his bail application more particularly when he was already enjoying the liberty through pre-arrest bail. He further submits that as and when applicant learnt about issuance of NBWs against him, he voluntarily surrendered before High Court and then appeared before the trial Court hence conduct of applicant does not prove himself to be an absconder. Hence trial Court has not appreciated the material made available before it. He, therefore, submits that he may be granted bail. In support of his contention he places his reliance on the cases of Mukaram vs. The State (2020 SCMR 956), Muhammad Ashique vs. The State (1999 P.Cr.L.J 248), Dosoo vs. The State (2003 P.Cr.L.J 933) and un‑reported orders passed by the bench of this Court in 1st Criminal Bail Application No. S-512 of 2014 Re: Akber vs. The State, Criminal Bail Application No. S-301 of 2013 Re: Qurban vs. The State, and Criminal Bail Application Nos. S-543 and 619 of 2008 Re: Atta Muhammad vs. The State.

5.         On the other hand Syed Sardar Ali Shah learned Additional P.G opposes the bail application on the ground that applicant remained fugitive from law for noticeable period, therefore, he is not entitle for bail. Learned Addl.P.G; however, does not controvert the fact that he was all along on pre-arrest bail granted to him by the trial Court on merits and mere absconsion per se could not be made basis for refusal of his bail. Learned Addl.P.G further admits that there is enmity between the parties which is also a good ground for releasing the applicant on bail.

6.         Mr. Ghulam Mujtaba Jakhar Advocate for complainant vehemently opposed the bail application on the ground that applicant is involved in series of criminal cases besides he remained fugitive from law, therefore, he is not entitled for bail.  Mr. Jakhar does not controvert the facts that applicant was granted pre-arrest bail on merits and later on he surrendered voluntarily before High Court. He further submits that learned counsel for applicant has taken grounds before this Court which were not taken by him before first forum. He; however, admits that on merit applicant/accused was on bail. He also advances the proposal to the effect, instead of pressing this bail application on merits, directions may be issued to trial Court so that trial can be concluded. Learned counsel for complainant has also not given plausible explanation to justify whether accused has been convicted in any of the crime or otherwise. In support of his contention he placed reliance upon the cases of Raja Fazal-ur-rehman vs. Muhammad Afzal and another (2010 SCMR 179).

7.         Heard arguments and perused the record.

8.         Admittedly the applicant was granted extra ordinary relief in shape of pre-arrest bail on merits and the offences with which he was charged was in respect of an attempt of abduction. As far as involvement of applicant in serious of criminal cases is concerned it is well settled principle of law that mere involvement of the accused in criminal cases would not disentitle him from relief sought for. Learned counsel for complainant very frankly concedes that the applicant has not been convicted in any case hence mere involvement in criminal cases is not good ground to withhold the concession of bail in the given circumstances.

9.         In the circumstances, reliance in this regard is placed upon the case titled as Mounder and others vs. The state (PLD 1990 SC 934) and the case of Muhammad Rafique vs. The State (1997 SCMR 412). Moreover, the offence involved in this case, if proved by the prosecution after recording evidence carries two folds of the punishment, therefore, following the dictum of law, the lesser punishment is to be considered at bail stage. Since the applicant was all along on pre-arrest bail on merits, therefore, his absconsion does not withhold the concession of  bail  to him particularly at this juncture. Applicant is in custody right from 0704.2022 which is an extra punishment for him for the period he has allegedly remained absconder. Reliance can also be placed upon the case of Zaheer Ahmed vs. State reported in 1983 P.Cr.L.J 2600. In the circumstances and in view of above factual position this is fit case where lenient view could be taken. Consequently, this bail application is hereby allowed. Applicant Saeed Ghani Mahesar shall be released on bail subject to furnishing his solvent surety in the sum of Rs. 100,000/- (One lac) and PR bond in the like amount to the satisfaction of trial Court. Learned trial Court is at liberty to take action against the applicant/accused, if he misuses the concession of bail.

10.       Needless to mention that the observations made hereinabove are tentative in nature and would not influence the learned Trial Court while deciding the case of the applicant on merits.

 

11.       The aforesaid bail application stands disposed of in the above terms.

                                                                                    JUDGE

Irfan/PA

 

ORDERSHEET

IN THE HIGH COURT OF SINDH BENCH AT SUKKUR____.

Criminal Appeal No. D-92 of 2016

__________________________________________________________________           

DATE             ORDER WITH SIGNATURE OF JUDGE ________________________________________________________________

 

 

 

21-09-2016.

 

Mr. Sher Muhammad Shaikh advocate for appellant.

Mr.Abdul Rehman Kolachi A.P.G for the State

 

                                                                        -.-.-.-.-.-.

 

 

            Appellant Babu alias Ali Mardan was tried by learned Special Judge for CNS Khairpur in Special case No.94 of 2015 for offence under section 9-C of CNS Act, 1997. On conclusion of trial, vide judgment dated 09.05.2016, appellant was convicted under section 9-C of CNS Act, 1997 and sentenced to R.I for 5 years and 06 months and to pay fine of Rs.25,000/-, in case of default he was ordered to suffer S.I for 05 months and 15 days more.

 

2.       Appellant preferred appeal and along with appeal, an application for suspension of sentence is moved.

 

3.       Mr. Sher Muhammad Shaikh learned advocate for appellant mainly contended that sentence is short one and hearing of appeal would take long time. In support of his contention he has relied upon cases of Abdul Hameed v. Muhammad Abdullah and others (1999 SCMR 2589) and Nazeer Ali alias Nazeer v. the State (2001 YLR 403).

 

4.       Learned A.P.G for the State recorded no objection for suspension of sentence during pendency of appeal.

 

5.       After hearing learned counsel for the parties, we have carefully perused the impugned judgment. From perusal of judgment, it transpires that appellant has been convicted and sentenced to 05 years and 06 months, which is the short one. Keeping in view the huge pendency of appeals, hearing of appeal would take some time. In case of Abdul Hameed (supra) Hon’ble Supreme Court suspended the sentence while holding that sentence was a short one. It is held as follows:

“ On the other hand, Mr. S.M.Masud, learned advocate Supreme Court, for the petitioner, has argued that the learned Additional Sessions Judge without putting to the petitioner the notice as to the enhancement of the sentence and without hearing the arguments,enhanced the imprisonment for three years to five years and the amount of Rs. 5,000/- to Rs. 10,000/-. Without going to the question, whether any notice was issued for the enhancement by the learned Additional Sessions Judge (as according to the State counsel such a notice was issued). We are inclined to hold that since the sentence was short and as the sentence was enhanced by the learned Additional Sessions Judge from three years to five years, it was fit case in which the learned Judge in Chambersshould have exercised the discretion in favour of the convict. We convert the above petition into appeal and admit the petitioner to bail in the sum of Rs. 2,00,000/- (two lacs) with one surety in the like amount to the satisfaction of the trial Court”.

 

 

6.         Keeping in view the dictum laid down in the aforesaid authority and since the sentence of five years and six months is short one, therefore, sentence awarded to the appellant is suspended during pendency of appeal subject to his furnishing solvent surety in the sum of Rs. 100,000/- (One lac) with PR bond in the like amount to the satisfaction of Additional Registrar of this Court.

 

7.       MA No.2433 of 2016 stands disposed of accordingly.

 

 

                                                                    JUDGE

                                                JUDGE

Irfan/PA.