Criminal Appeal No. 22 of 2010
Mr. Justice Aqeel Ahmed Abbasi.
Date of hearing : 24.09.2012
Date of order : 03.10.2012
Appellant : Syed Naveed Ali through
Mr. Aamir Mansoob Qureshi,
Respondent : The State through Mr. Abdullah
O R D E R
Aqeel Ahmed Abbasi, J. Through instant application filed under section 426 Cr.P.C, the applicant Syed Naveed Ali has sought his release on bail on the statutory ground of delay in disposal of this appeal by suspending the sentence awarded by the the impugned judgment dated 14.12.2009. The learned Vth Additional District and Sessions Judge, Karachi East, in Sessions Case No.178/2008, FIR No.26/2008 under Section 365/34 PPC read with Section 376 (2) of Protection of Women Act, 2006 registered at P.S. Khokhrapar, Karachi has convicted the present applicant alongwith co-accused Syed Shariq Ali to under-go R.I. for 07 years and fine of Rs.5000/- each, so also sentenced under Section 376(2) Protection of Women (Criminal Law Amendment) Act, 2006 (IV of 2006) for life imprisonment and a fine of Rs.10,000/- each, and in case of failure or payment of fine, they will further suffer S.I for three months each. Both the sentences would run concurrently. The benefit of Section 382-B Cr.P.C would be extended to the accused persons in accordance with law and their punishment would be considered from the date of their arrest.
2. Learned counsel for the applicant has submitted that under the amended provisions of section 426 (1A) (c) of the Code of Criminal Procedure (Amendment) Act, 2011, the provision has been made for the convict, who has been sentenced 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 Appellate Court is of the opinion that appellant is not hardened, desperate or habitual offender. Learned counsel further submitted that the appeal of the appellant was admitted for regular hearing on 25.01.2010, whereas till date, not a single adjournment has been sought on behalf of the applicant. It has been contended by the learned counsel that the delay in disposal of appeal is not attributable to the present applicant. He has further contended that the case of the applicant is fully covered under the provisions of law mentioned hereinabove and applicant namely Syed Naveed Ali is entitled to be released on bail during pendency of instant appeal by suspending sentence. It has been contended by the learned counsel that the applicant was not previously convicted offender for an offence punishable with imprisonment for life nor he is a hardened, desperate or habitual offender. Per learned counsel, the delay is not attributable to the applicant and it is only on account that the regular cases are not being proceeded, therefore, the appellant may be granted bail under newly, amended provisions. While concluding his arguments, the learned counsel for applicant submitted that while considering the request of an appellant for his release on bail on statutory ground of delay, the court has limited discretion as provided in the Statute, and if the same are fulfilled then the appellant is entitled to be released on bail by suspending the sentence.
3. In support of his contention, learned counsel has placed reliance on the following judgments:
1. Muhammad Yaqub v. Munawar Sher 1999 SCMR 1323
2. Bahadar and 5 others v. The State1997 SCMR 1183
3. Shabeer v. The State 2012 SCMR 354
4. Ghulam Qadir alias Azeem and another v. The State 2010 MLD 1948
5. Insaaf and 2 others v. The State 2012 YLR 1588
4. Conversely, learned APG has submitted that the ground of delay cannot be attributed in the instant case, however, he has no objection to the grant of listed application keeping in view the statutory provisions as contained in amended section 426 (1-A) (c) Cr.P.C as the appellant is not hardened, desperate or habitual offender.
5. I have heard the learned counsel for the applicant as well as learned APG and perused the record. In order to appreciate the contention of the learned counsel for the applicant, it will be advantageous to quote the provisions of section 426 (1-A) of Code of Criminal Procedure (Amendment) Act, 2011, which is reproduced hereunder:-
“(1-A) 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.
(a) 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;
(b) to imprisonment for a period exceeding three years but not exceeding seven years and whose appeal has not been decided with a period of one year of his conviction;
(c) 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 paragraph 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.”
6. From perusal of Jail Roll, it appears that the applicant has by now already undergone sentence of 4 years 6 months, whereas he has earned remission for a period of 10 years and 6 months. As per certificate dated 5.9.2012 issued by Jail Superintendent, applicant Syed Naveed Ali son of Syed Ziaul Hasan is not previously convicted by any court of law, whereas his conduct in Prison has remained satisfactory. Learned APG after perusal of the amended provisions of Section 426 (1-A)(c) Cr.P.C. and the case relied upon by the learned counsel for the applicant has also extended no objection to the grant of bail to the applicant by suspending execution of sentence during pendency of the appeal. Instant appeal was admitted to regular hearing on 25.01.2010 and since then it has not decided. From perusal of case diary it is noted that no adjournments have been taken by the counsel for the appellant, whereas urgent applications were also moved for hearing of application under section 426 Cr.P.C. On number of occasions the case was adjourned for want of time. It is pertinent to note that on number of occasions when the matter was taken up for hearing, it was directed that application under Section 426 Cr.P.C. may be heard along with main appeal, however, neither the appeal was head nor the application under section 426 Cr.P.C. was decided.
7. Learned counsel for the applicant has placed reliance on the case of Bahadar and 5 others v. The State 1997 SCMR 1183, wherein the Hon’ble Supreme Court has held that “under section 426(1A), Criminal Procedure Code, a person under a sentence of imprisonment for life becomes ordinarily entitled to be released on bail if his appeal is not decided within a period of two years of his conviction. If the appellate Court denies him this benefit it must record its reason for the denial. The High Court has not recorded its reasons for not extending the benefit of this provision to the petitioners; it only directed that their appeal should be listed for hearing on 15.5.1995. It may be mentioned that their appeal was not heard on that day. In the circumstances, we convert this petition into appeal and direct that they shall be released on bail on their executing bonds in the sum of Rs.100,000/- with two sureties each in the like amount to the satisfaction of the Assistant Commissioner, Vehari.”.
8. In the case of Shabeer v. The State 2012 SCMR 354, wherein Hon’ble Supreme Court while examining the similar amendments introduced through Act VIII of 2011 in Section 497 Cr.P.C, has held that “having considered the submission made before us by the parties’ counsel, we have also perused the newly added provision to section 497 Cr.P.C, vide Act VIII of 2011, which entitles an accused for enlargement on bail, after having remained in custody for a continuous period exceeding two years unless in the opinion of the Court a hardened, desperate or dangerous criminal or was accused for an act of terrorism punishable with death or Imprisonment for life, which is not the position in the instant case.”
9. Similarly, in three other reported cases relied by the learned counsel for the applicant i.e. Ghulam Qadir alias Azeem and another v. The State 2010 MLD 1948, Ghulam Mustafa and 2 others PLD 2011 Karachi 394 and Tariq Shah v. The State 2012 P.Cr.L.J 634, the three different judges of this Court including the undersigned have granted bail to the applicants on the statutory ground of delay without having recourse to examine the merits of the case.
10. From perusal of the newly inserted provisions vide Act VIII of 2011 in section 426 Cr.P.C, it appears that the word “shall” used in section 426 (1-A) Cr.P.C has been inserted to make it mandatory whereby the applicant who falls within the categories as enumerated in sub-clause (a), (b) and (c) of subsection (1-A) of section 426 Cr.P.C and does not fall within the exception as provided in proviso to sub-clause (c) hereinabove, i.e. he is previously offender for an offence punishable with death or imprisonment for life, who in the opinion of Court is a “hardened”, “desperate” or “dangerous criminal” or is accused of an act of terrorism punishable with death or imprisonment for life, is entitled to be released on bail by suspending the sentence during pendency of the appeal and there is hardly any discretion left with the Court to examine the merits of the case. Reference in this regard can be made to the case of Sikandar @ Dhuni and another v. The State 1995 P.Cr.L.J 1522 and Raja Abdul Majeed v. The State PLD 1997 Karachi 358
11. In the above circumstances, the execution of sentence awarded by the learned trial court to the applicant Syed Naveed Ali son of Syed Ziaul Hassan is hereby suspended and the applicant is admitted to bail upon his furnishing solvent surety in the sum of Rs.5,00,000/- (Rupees Five Lac) only and P.R. bond in the like amount to the satisfaction of the Nazir of this Court. However, the applicant Syed Naveed Ali shall attend the court on each and every date of hearing.