Raja Fayya z Ahmed C.J.--By this common order, we intend to dispose of the above noted Misc.
Applications filed on behalf of the each of the convicts seeking for suspension of sentence awarded to them vide judgment dated 21.6.2003 passed by the learned Judge, Accountability Court-I, Quetta in Reference No, 11/2002.
2. Applicants Arif Javed, Muhammad Amin, Karamat Hussain, Abdul Samad and Muhammad Ali alongwith other co-accused persons except Muhammad Ismail and Sabir Hussain (acquitted on the charge) have been convicted under Section 10 read with Section 11/12 of the NAB Ordinance, 1999 for having been found guilty of the offence of corruption and corrupt practices under Section 9 (vi) of the NAB Ordinance, on account of which Government suffered a loss of Rs, 44,92,499/- and each one of them have been sentenced to suffer imprisonment for three years R.I as well as each to pay fine of Rs, 9,00,000/-. In default of payment of fine to further suffer six months R.I.
3. Criminal Misc. Application No, 345/2003:--Syed Ayaz Zahoor contended that applicant/convict (Arif Javed) is ready and willing to deposit the amount of fine with the Registrar of the Court subject to final lecision of his appeal, which is likely to entail a few months time period and ;secondly, the prosecution through evidence produced at the trial failed to lischarge the initial onus by substantiating that the accused was involved in corruption and corrupt practices and thereby the besides other co-accused persons convicted by the Court, caused a loss of Rs, 44,92,499/- to State Exchequer, but by misappraisal and non-reading of material parts of the prosecution evidence applicant has been convicted on the charge, therefore, he sentence awarded to the applicant may be suspended subject to the burnishing of bail bond for his appearance before this Court. The learned counsel placed reliance on the order of the Division Bench of this Court massed in CMA No, 783/2002 in Ehtesab Appeal No, 70/2002 whereby entente of four years awarded to the accused by the learned Accountability court was, suspended subject to the deposit of the amount of fine of Rs, ,00,000/- with the Registrar of the Court and to furnish P.R bond in the ke amount to the satisfaction of the Registrar of the Court and the udgment of the honourable Supreme Court in the case of Abdul Hameed vs. 4r. Abdullah etc. reported in NLR 1999 (Criminal) 279.
4. Criminal Misc. Application No, 346/2003:--Mr. H. Shall Ahmed, the learned counsel for the applicants/convicts (Muhammad Amin, Karamat Hussain and Abdul Samad) adopted the arguments put forth by Syed Ayaz Zahoor Advocate and submitted that due to weak financial position none of the applicants is in a position to deposit the amount of fine.
5. Criminal Misc. Application No, 347/2003:--Mr. Kamra Murtaza, the learned counsel for the convict/appellant (Muhammad Ali) also adopted the contentions put forth by Syed Ayaz Zahoor Advocate an submitted that due to poor' financial status, the applicant is incapable to deposit the fine amount.
6. Mr. M.S Rakhshani, the learned DPG, NAB contended that accused/applicants were convicted and sentenced to three years R.I each and fine of Rs, 9,00,000/- each vide judgment dated 21.6.2003 passed by the learned Judge, Accountability Court-I, Quetta and a period of six months as envisaged by Clause (a) of sub-section (1) of Section 426 Cr.P.C. since the date of presentation of appeal i,e, 23.6.2003 has not been elapsed, therefore, application for suspension of sentence having been prematurely filed, is liable to rejection. However, according to the learned DPG in case the appeal is ;not decided within the period of six months, the applicant can competently move afresh for suspension of sentence and secondly; a mere offer to deposit the amount of fine per se is no ground to suspend the sentence awarded by the learned Accountability Court after appraisal of entire evidence. According to the learned DPG huge financial loss has been caused by the accused persons to State exchequer by commission of acts of corruption and corrupt practices, therefore, they are not entitled to any indulgence in the exercise of discretionary powers vesting in the Court and exercisable within the parameters laid down by the provisions of Section 426 Cr.P.C.
He further submitted that the order passed by the honourable Division Bench of this Court referred by Syed Ayaz, Advocate and cited case law are distinguishable on facts.
7. We have considered the submissions put forth on behalf of the parties' learned counsel and the learned DPG. Undisputedly, the appellate Court pending any appeal by a convicted person, for reasons to be recorded by it in writing can order for execution of sentence or order appealed against be suspended, and; also if such person is in confinement that such person be released on bail or on his own bond, but such 'powers conferred on the Appellate Court by virtue of sub-section
(1) of Section 426 Cr.P.C. will be exercisable within the purview of provisions of Clause (a), (b) and
(c) of subsection (1) of Section 426 Cr.P.C. containing specified parameters for release of a convicted person on bail, keeping in view the quantum of sentence of imprisonment to which the accused has been sentenced to. These specified parameters for the exercise of jurisdiction by the Appellate Court as per provisions contained in the abovequoted Clauses are based and have their roots on wisdom, reasonableness and logic which on the other way round can be looked that an accused found guilty by a competent Court of law and sentenced to imprisonment for a period of three years or upwards or imprisonment for life can move to the Appellate Court by making application for suspension of sentence within the purview of sub-section (1) of Section 426 Cr.P.C. provided his case for the relief falls within either of the categories of Clause (a), (b) and (c) of sub- section (1) of Section 426 Cr.P.C. In the intant case, the appellants have been each sentenced to three years R.I and a fine of Rs, 9,00,000/- each vide judgment dated 21.6.2003 who respectively preferred appeals against their conviction on 23.6.2003 alongwith the applications filed on behalf of each of them by their learned Advocates for suspension of sentence and thus; within the period of two days from the date of their conviction they have sought for the suspension of sentence, hence; in our considered view very hastily and without observing if their appeals can be decided within a period of six months of their conviction or have not been decided within such period within the purview of Clause of (a) of sub-section (1) of Section 426 Cr.P.C. have sought for the relief for suspension of sentence, but it would not mean that they cannot file applications for suspension of sentence by virtue of the provisions of the abovequoted clause, however; it is to be kept in mind that an accused person, who has been sentenced to imprisonment for a period of not exceeding three years and whose appeal has not been decided within a period of six months of his conviction can within such period or thereafter apply for the suspension of sentence to the Appellate Court.
Moreover; the powers conferred on the Court of appeal for suspension of sentence no doubt are discretionary in nature but are not to be exercised in a routine or mechanical manner and arbitrarily, rather; such discretion is exercisable on well established principles of criminal administration of justice, which also eminate from the provisions of sub-section (1) of Section 426 Cr.P.C. that for reasons to be recorded in writing pending any appeal by a convict person sentence awarded to a convict person can be suspended by a Appellate Court and, also, if he is in confinement such person can be released on bail or on his own bond. Thus; it is quite manifest from the words 'for the reasons to be recorded' used in sub-section (1) of Section 426 Cr.P.C. that unless facts and circumstances of the case which also stand merged into judicial verdict of conviction of an accused person, a case fit for suspension of execution of sentence or release of a convicted person on bail is to be made out else, the convicted person will not be entitled to be released on bail in normal course, hence; the mandate of law to 'record reasons in writing' for release of a convicted person on bail pending his appeal has been significantly provided.
We are not, after perusal of the impugned judgment dilating upon the merits of the case even tentatively appreciating the contentions of appellants' learned counsel that the prosecution through evidence failed to discharge the initial onus in respect of the charge ,as the same is likely to prejudice the case of either party, and secondly; as it can be safely assumed prima facie in view of the impugned, judgment that they have caused a huge financial loss to the State exchequer by commission of their acts of corruption and corrupt practices. The offer made on behalf of the convict Arif Javed that he is ready and willing to deposit the amount of fine with the Registrar of the Court ipso facto will not furnish any legal and sole basis to release him on bail pending decision of appeal.
8. The honourable Division Bench of this Court in Criminal Ehtesab Appeal No 70/2003 was pleased to suspend the sentence of convict/ appellant sentenced to four years R.I and fine of Rs, 7,00,000/- by the learned Accountability Court without touching to the merits of the case subject to the deposit of amount of fine with the Registrar of the Court in view of the quantum of sentence awarded to the convict as well as the time likely to be consumed as per roster in the disposal of appeal vide order dated 31.12.2002. The attention of Honourable Bench seized of the matter appears to have not been invited by the learned DPG to the provisions of Clause (b) of sub-section
(1) of Section 426 Cr.P.C. that a period of one year was not elapsed from the date of conviction of the accused i,e, 4.12.2002 and as to the possibility of his appeal being decided prior, to such period.
This order sought to be used as precedent in the instant case, in our humble view will not be of any avail to the case in hand for the reason that while allowing the interim relief the provisions of Section 426 Cr.P.C. relevant to the matter were not brought to 'notice of the honourable Court nor any rule for grant or refusal to such relief was laid down. The bare reading of the order shows that the honourable Court granted the relief in an individual case having no direct effect on other identical nature of cases.
9. In the other cited case reported in NLR 1999 Criminal page 279, the honourable Supreme Court suspended the sentence of convict who was initially sentenced to three years R.1 and fine of Rs, 5000/- and was. enhanced to five years R.I and fine of Rs, 10,000/- under Section 406 PPC by the Revisional Court; on the ground that sentence was short and was enhanced to five years R.I instead of three years R.I and thus; the honourable Apex Court Held that it was a fit case in Which discretion should have been exercised in, favour of the convict.
It is not ascertainable from facts of the case given in the abovequoted judgment as to on which particular date the accused was convicted by the Judicial Magistrate. Section 30, Lahore and for how long period his appeal remained pending with the learned Appellate Court which finally vide judgment dated 8.10.1998 dismissed the appeal of the convict and vide order of even- date enhanced the sentence to five years R.I from three years R.I.
Both these orders were assailed by the convict by filing Petition under Section 561-A Cr.P.C. in the honourable Lahore High Court in which Criminal Misc. Application No, 2/1998 for suspension of sentence was filed which was declined by the honourable Court vide order dated 23.11.1998. Such order and the one passed by the learned Additional Sessions Judge on 8.10.1998 were assailed by the convict before the honourable Supreme Court. Hence the period for which the convict remained in Jail in connection with the said case till suspension of his sentence is not known, therefore, it cannot be said that appeal preferred against his conviction was decided by the Appellate Court within the period of six months from the date of his conviction or otherwise in view of the provisions of Section 426 (1) Cr.P.C.
Admittedly the honourable Supreme Court has been conferred with vast plenary powers and authority under the Constitution to suspend the execution of any 'sentence or admit a convict on bail whether be a sentence short or long but; as regards the powers conferred on a Court of appeal are concerned, have been made subject to the relevant provisions of law as contained in Section 426 Cr.P.C. referred to hereinabove and to be exercised in accordance with law on sound and well set principles within the specified parameters. Admittedly, the accused persons/applicants were convicted by the Accountability Court on 21.6.2003 for a term of three years R.I each with a fine of Rs, 9,00,000/- each and a period of six months has not elapsed since the date of their conviction against which their appeals obviously cannot be said to have not been decided within six months, hence; merely because they have been sentenced to three years each and fine as abovesaid, in our view is not a ground to exercise discretion in their favour by suspending the sentence recorded by the learned trial Court after appraisal of evidence.
Thus; for the foregoing reasons we, do not find any merit in these Criminal Misc. Applications which accordingly are rejected.