ORDER SHEET

IN THE HIGH COURT OF SINDH, BENCH AT SUKKUR

Cr. Appeal No. 88 of 2011.

For hearing of MA 3626/2011.

Date of hearing: 22^nd August, 2011.

Mitho alias Muhammad Mithal Lakhan……………………Appellant.

                                      Versus.

The State…………………………………………….…..Respondents.

For the appellant:                                       Mr. Maqbool Ahmed Awan.

For the State:                                     Mr. Zulfiqar Ali Jatoi, D.P.G.

Muhammad Ali Mazhar J., The appellant has moved this application under section 426, Cr.P.C. for suspension of his sentence. Succinctly, the facts of the case are that vide judgment dated 28-07-2011, appellant Mitho alias Muhammad Mithal was convicted under section 302 PPC to suffer R.I. for five years in Sessions case No. 165 of 2002, decided by the learned Sessions Judge, Sukkur.

1. The learned counsel argued that in the concluding paragraph of the judgment, it is mentioned that prosecution has proved the case against accused Mitho and Manzoor to the extent of sharing common intention as they facilitated the accused who caused injuries to deceased and while taking a lenient view they were convicted to suffer R.I. for a period of five years each and to pay fine of Rs.10,000/- each. It is further mentioned in the impugned judgment that appellant Mitho was on bail, his bail bond was cancelled, surety was discharged  and  he  was  taken into custody and remanded to jail along with conviction slip. However, benefit of Section 382-B Cr.P.C was extended to him for the reason that he was arrested on 02-07-2002 and bailed out on 23-12-2003, therefore, his period of detention was directed to be deducted from his conviction.

2. The learned counsel for the appellant further argued that appellant has already served his sentence more than 19 months while the remaining period of sentence is only three years. He urged that this is an appeal instituted in the year 2011, therefore, keeping in view the backlog it will take sufficient time to decide and conclude. In support of his arguments, the learned counsel relied upon a judgment reported in 2011 YLR 403, (Nazeer Ali alias Nazeer vs. State), in which, the learned division bench of this court observed in similar case of short sentence that disposal of appeal may take more time, therefore, sentence awarded to the appellant was suspended. In another case reported in 2007 P.Cr.L.J 1035, (Shafquat Mehmood vs. State), the learned division bench of this court has dealt with Section 426 Cr.P.C and in this case also sentence was only for five years and out of which appellant remained one year and 10 months in jail and remaining portion of sentence was only three years. The learned division bench in this case went on to hold that in view of backlog of cases it was obvious that appeal filed by the accused could not be disposed of in near future, therefore, sentence awarded to the appellant was suspended and he was ordered to be released on bail subject to his furnishing surety.

 3. Conversely, the learned DPG for the State opposed this application on the ground that instead of allowing this application, entire appeal may be heard and disposed of and he further argued that while awarding five years sentence under section 302 PPC, the learned trial court has not specified and mentioned in which clause of Section 302 PPC, a short sentence of five years has been awarded to the appellant. This particular aspect and legal defect or flaw, if any, in the impugned judgment will be considered at the time of regular hearing of this appeal. It is also a fact that State has not preferred any revision application against the impugned judgment for enhancement of sentence. Notwithstanding, this peculiar component will be examined at the time of regular hearing of this case. So far as the present application is concerned, it has been scarcely moved only for the reason that sentence is short. The appellant is languishing in jail for last two years.

4. The power of Appellate Court under Section 426 (1), Cr.P.C. is not limited and court may pending disposal of appeal, suspend the sentence of a convict in an appropriate case in its discretion for good and sufficient reasons, but such power of suspension of sentence and grant of bail is not wider than that of under Section 497 Cr.P.C. The honorable supreme court in its judgment reported in PLD 2002 SC 845 (Allah Ditta Khan vs. State), held that it was 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 contention raised requires consideration of merits, the Appellate Court would refrain from entertaining such contentions. At this stage, the Court cannot enter into a re-appraisal of evidence which should be considered at the time of hearing of the appeal. Where on perusal of the facts in the judgment impugned, the court comes to the conclusion that the judgment suffers from any legal error, it would be justified to suspend the sentence and grant the bail. In this regard the reasonable and legal views expressed by the trial Court should be given due consideration and weight, but all attempts should be neither to reappraise the evidence nor to enter into the merits of the case. Keeping in mind the above ratio, I have also examined the impugned judgment and found some legal error and flaws. However, the present application has been moved on the ground of short sentence and reliance has been placed on two different division bench judgments of this court which are directly attracting and germane to the facts and circumstances of the present case.

5. For the foregoing reasons, the sentence awarded to the appellant by the trial court is hereby suspended and the appellant is released on bail subject to his furnishing solvent surety in the sum of Rs.2,00,000/-      (Rupees two lacs) with PR bond in the like amount to the satisfaction of Additional Registrar of this Court. Application is disposed of accordingly.

Judge