ࡱ> ^`]q` (9bjbjqPqP ;^::1%@@@8xl$55"6664444444$5hS8d44664^^^X664^4^^rH TH!6 ' @X 45055 8R8H!H!48|!8vT^D44X55D d  ORDER SHEET IN THE HIGH COURT OF SINDH, CIRCUIT COURT, HYDERABAD Cr. Appeal. No.S-207 of 2004 DATE ORDER WITH SIGNATURE OF JUDGE For hearing of MA 2607/07 as well as main case. Date of hearing 27.05.2011. Appellants produced in custody. Syed Madad Ali Shah, Advocate for appellants. Mr. Shahzada Saleem Nahyoon, A.P.G for the State. = Muhammad Ali Mazhar-J; The appellants Ghulam Mustafa, Farman Ali and Liaquat Ali have moved this application under Section 426 Cr.P.C for suspension of their sentences and concession of bail. During trial, all the three appellants were on bail. However, vide judgment dated 25th October, 2004, the appellants were convicted for life imprisonment, their bail bonds were cancelled and they were taken into custody. The other co-accused Niaz Ahmed, Muhammad Ishaque, Akhtar and Arshad were acquitted by the trial Court. 1. The learned counsel for the appellants argued that according to jail roll submitted on 23.5.2011, the appellants (1) Ghulam Mustafa has substantially served his sentence of 09 years, 05 months and 01 day and he earned the remissions of 09 years, 01 month and 25 days and his remaining sentence is 06 years, 11 months and 04 days. (2) Farman Ali has served 09 years, 05 months and 05 days and earned the remissions of 09 years, 01 month and 25 days and his remaining sentence is 06 years and 11 months and (3) Liaquat Ali has served the sentence of 09 years, 05 months and 05 days and he earned the remissions of 09 years, 04 month and 09 days and his remaining sentence is 06 years, 08 months and 16 days. 2. The learned counsel further argued that appeal was admitted for regular hearing on 30.11.2004 and since then it is pending. He further averred that now keeping in view, the latest amendment made in Criminal Procedure Code by virtue of Code of Criminal Procedure (Amendment) Act, 2011, Gazetted on 21st April 2011, the appellants are entitled for suspension of their sentence. He further argued that one of the appellants namely Farman Ali is seriously ill and he is brought to the court on stretcher. 3. By virtue Code of Criminal Procedure (Amendment) Act 2011, sub-section 1A has been inserted in Section 426 of the Code of Criminal Procedure 1898, which reads as under: (1A) An Appellate Court shall, except where it is of the opinion that the delay in the decision of appeal has been occasioned by an act or omission of the appellant or any other person acting on his behalf, order a convicted person to be released on bail who has been sentenced:- to imprisonment for a period not exceeding three years and whose appeal has not been decided within a period of six months of his conviction. to imprisonment for a period exceeding three years but not exceeding seven years and whose appeal has not been decided within a period of one year of his conviction; or to imprisonment for life or imprisonment exceeding seven years and whose appeal has not been decided within a period of two years of his conviction: Provided that the provisions of the foregoing paragraphs shall not apply to a previously convicted offender for an offence punishable with death or imprisonment for life or to a person who, in the opinion of the Appellate Court, is a hardened desperate or dangerous criminal or is accused of an act of terrorism punishable with death or imprisonment for life. 4. The learned A.P.G, so far as the application of appellant Farman Ali is concerned, conceded to his no objection keeping in view his ill heath but for the other appellants, the learned A.P.G submits that though the newly inserted sub-section 1(A) in Section 426 Cr.P.C is applicable but the conduct of the appellants and their counsel is also to be examined for ascertaining the fact that who has caused the delay in proceedings. 5. I have seen previous order sheets. This appeal was admitted for regular hearing on 30.11.2004 and after its admission to regular hearing, two dates were wrongly fixed for Katcha Peshi, thereafter, matter was being fixed for hearing of application and a long time was consumed in the medical examination of appellant Farman Ali and for submission of his report in this court. However, two or three dates were requested by the earlier counsel for appellants which is quite normal in all cases. Few diaries are showing that matter was adjourned due to absence of the complainants counsel. On 5.11.2009, the notice was issued to the complainant as well as Additional Prosecutor General for 24.11.2009, then the order sheet dated 21.12.2009 shows that advocate for complainant was called absent and again on 4.1.2010 the position was same. On 26.3.2010, notice was issued to the complainant and the order dated 27.4.2010 shows that complainant had passed away on 3.3.2007. On 19.5.2010 the matter was partly heard by another learned single Judge of this Court and again on that date, the earlier complainants counsel submitted that complainant has passed away therefore, his power has been discharged. Thereafter, on 24.5.2010 Chaudhry Javed, Advocate filed Vakalatnama on behalf of the brother of complainant on the ground that complainant has expired therefore, he may be allowed to proceed with the matter. On that date, the learned Judge ordered that this matter may not be treated as part heard. On 7.12.2010, again a notice was issued to Chaudhry Javed who had filed his Vakalatnama on behalf of the brother of deceased complainant. On 6.5.2011, M.A No.2607 was fixed for hearing but no body was present on behalf of the brother of complainant, therefore, in the interest of justice again a notice was issued to the advocate of the complainants brother for 16.5.2011 but no body appeared and the Court called report from the Central Prison, Hyderabad regarding the previous conviction of appellants if any in terms of proviso attached with newly inserted sub-section 1A of Section 426 Cr.P.C. On 23.5.2011, the report was submitted by Superintendent Central Prison, Hyderabad but the learned A.P.G sought time to examine the case as to why the appeal was not previously heard and who is responsible for delay, therefore, at his request the matter was again adjourned for today. 6. An intimation notice to the learned counsel who effected his appearance on behalf of the complainants brother was issued but again nobody is present to proceed. After examining the previous order sheets, I am of the firm opinion that the delay was not caused solely for inaction or lack of concern and or lackadaisical attitude of the appellants but there are many other reasons for the delay for which appellants cannot be held responsible solely for denying or disagreeing with the benefit of sub-section 1 (A) of Section 426 Cr.P.C. 7. Before the suspension of sentence and to grant bail, the legislature has imposed an obligation and responsibility upon the court to first ascertain and examine the cause of delay. A convicted person may be released by the court on bail, except where it is of the opinion that the delay in the decision of appeal has been occasioned by an act or omission of the applicant or any other person on his behalf. This statutory right is subject to the fulfillment of the criteria and decisive factor prescribed under clause (a) to (c) of Section 1A of Section 426 CR.P.C which germane to the particular period of sentence and time specified for decision of appeal in which it has not been decided by the court. According to the condition laid down in the proviso, it is also to be examined essentially whether the person applied for bail is not previously convicted offender for an offence punishable with death or imprisonment for life or a person who in the opinion of appellate court is hardened desperate or dangerous criminal or is accused of an act of terrorism punishable with death or imprisonment for life. 8. It is not mandatory, obligatory and bounden duty of the High Court to have examined the case on merits and should have dilated upon the contentions as agitated in depth while deciding application under section 426, Cr.P.C. for the simple reason that appraisal of evidence in depth is neither warranted nor desirable while, dilating upon and deciding such application. A Court should confine itself to the judgment assailed before it. A thorough scrutiny of evidence and its evaluation should be made while adjudicating upon the appeal as it would be opportune moment for doing so and not while deciding the application moved under section 426, Cr.P.C. as it would be a premature stage. A conviction cannot be set aside while exercising jurisdiction as conferred under section 426, Cr.P.C. on the grounds with reference to evidence and merits of the case which certainly require a thorough probe and deeper scrutiny of evidence which should be avoided. The discretion has to be exercised judiciously by considering the relevant facts without entering into or commenting upon the merits of the case. If the contention raised requires consideration of merits, the Appellate Court would refrain from entertaining such contentions. At this stage, the Court cannot enter into a reappraisal of evidence which should be considered at the time of hearing of the appeal. Reference can be made to PLD 2002 Supreme Court 845, (Allahditta Khan versus The State). 9. By this latest amendment, in fact the legislature has not introduced any new section but restored the earlier Section 1A in Section 426 CR.P.C which was omitted by the Ordinance LIV of 2001 with effect from 10.10.2001 with slight modification in the language. In earlier provision, it was provided that An appellate Court shall, unless for reasons to be recorded in writing if otherwise, directs, order a convicted person to be released on bail who has been sentenced . However the present insertion made by virtue of Code of Criminal Procedure (Amendment) Act 2011, sub-section 1A, provides that An Appellate Court shall, except where it is of the opinion that the delay in the decision of appeal has been occasioned by an act or omission of the appellant or any other person acting on his behalf, order a convicted person to be released on bail who has been sentenced. At this moment, if the appeal is not disposed of within the period mentioned in sub-section 1A, a statutory right will be accessible to the convict for applying the suspension of sentence and bail. Before insertion or in fact before restoration of sub-section 1A, the honorable supreme court in the case of Makdoom Javed Hashmi, reported in 2008 SCMR165, held that the accused who had already undergone almost half of his sentence might seek suspension of his sentence in the interest of justice keeping in view the facts and circumstances of a particular case. If ultimately the appeal of accused is dismissed by the appellate Court, the provisions of subsection (3) of S.426, Cr.P.C. would come into operation and the period of suspension of sentence would stand excluded and he would have to undergo the sentence awarded to him by the Court. 10. The appeal is pending since 19.11.2004 and all the appellants have already served substantial portion of their sentences which is much more than the half sentence. In order to satisfy and or fulfill the requirements of proviso, I have also called the fresh jail roll and report of Superintendent Central Prison, Hyderabad. According to the report submitted on 23.5.2011, all the appellants are not previously convicted and their conduct has also been found satisfactory by the Superintendent. I have also examined the previous order sheets of the case file and reached to the conclusion that delay can not be attributed to the appellants solely but for various reasons, the appeal was being adjourned from time to time. It is also a fact that all the appellants are lifer and according to clause (c) of Section 1A, their appeal has not been decided within a period of two years of their conviction. If ultimately, the appeal of accused is dismissed by this court, the provisions of subsection (3) of S.426, Cr.P.C. would come into operation and the period of suspension of sentence would stand excluded and they would have to undergo the sentence awarded to them by the Court. 11. For the foregoing reasons, the sentence is suspended. The appellants are granted bail subject to furnishing solvent surety in the sum of Rs.2,50,000/- (Two Lacs Fifty Thousands only) each with P.R Bonds in the like amount to the satisfaction of Additional Registrar of this Court. 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