This is an application for suspension of sentence and grant of bail to applicant Rafique Ahmad alias Shika who, vide judgment, dated 15.9.2004, was convicted under Article 4 of the Prohibition- (Enforcement of Hadd) Order, 1979 (hereinafter referred to as "the Order") by the Magistrate 1st Class, Muzaffar Garh and sentenced to undergo R.I. for three years alongwith a fine of Rs. two thousand or in default thereof to further suffer S.I. for fifteen days on the charge that the applicant, on 24.5.2001 at about 8.00 p.m., was found in possession of 100 bottles (Kuppies) of intoxicant liquor allegedly kept by him, in his house, for the purpose of selling.
2. It has been contended by the learned counsel for the applicant that since the sentence inflicted on the applicant is short i.e. only three years, there is no likelihood of the appeal being heard in near future and offence under Article 4 of "the Order" is bailable, therefore, pending disposal of appeal, the applicant may be released on bail. Reliance has been placed on the following reported judgments:--
(i) Hata and others vs. The State PLD 1967 Lahore 1302, in which case a single bench of Lahore High Court was pleased to hold that since appeal was continuation of trial therefore, a person convicted of bailable offence, on filing appeal against his conviction, was entitled to bail as of right.
(ii) Shah Hussain vs. The State PLD 1995 Karachi 209 wherein another single bench of the Karachi High Court while relying on the above referred case of Hata and others vs. The State, was pleased to suspend the sentence inflicted on the applicant who was convicted under Section 320 PPC and sentenced to undergo five years R. I.
(iii) Abdul Samad vs. The State 1999 SD 432 wherein another single bench of Karachi High Court while relying on the above referred cases was pleased to suspend the sentence inflicted . on the applicant on the ground that the offence, under which the applicant was convicted, was bailable.
3. Mr. Shafqat Munir Malik, Assistant Advocate-General, learned counsel for The State has, not controverted the contention raised by the learned counsel for the applicant.
4. Notwithstanding the fact that contention raised by the learned counsel for the applicant has not been controverted by the learned A.A.G., it may be pointed out here that learned counsel for the applicant has raised the contention perhaps under some mis-conception because after conviction, bail cannot be claimed as of right, even in case of bailable offences because upon conviction the presumption of innocence attached to the accused is substantially dislodged and he is relegated to the status of a "convict". It is well settled that the power available under Section 426 Cr.P.C., which enables the Court to suspend sentences inflicted on appellants pending disposal of their appeals, cannot be regulated rather suppressed by the provisions of Sections 496 and 497 Cr.P.C. It would be pertinent to mention here that bail to a convicted person is not a matter of right, irrespective of the fact that the offence for which he has been found guilty is bailable or non- bailable. Language used in Section 426 Cr.P.C., whereby it has been made compulsory for Appellate Court of record reasons before suspending the sentence inflicted on a convict, makes it abundantly clear that legislature wanted the Court of appeal to apply its mind independently to the question of grant of bail. That is why under Section 426(1) Cr.P.C. an order, rejecting appellant's bail application, does not require to be supported with reason whereas, in case of grant of bail it is other way round.
5. It appears that in the above referred cases of Abdul Samad and Shah Hussain proper assistance was not rendered to the Court and decision of the Hon'ble Supreme Court of Pakistan in the case of The State vs. Shah Sawar 1969 SCMR 151 whereby judgment in Hata's case was over ruled, was not placed before their lordships. It would be pertinent to mention here that in Shah Sawar's case the controversy was set at rest by observing that there can be no such general rule that a person convicted for a bailable offence is entitled to bail as of right. It was further held therein that bail was always a direction of the Court and therefore, was, of necessity, to be exercised upon the facts and circumstances of each according to sound- judicial principles. While relying on the case of Khalid Segol vs. The State PLD 1962 SC 495 it was further observed in the above referred case that the power available to the Appellate Court under Section 426 Cr.P.C. was not to be controlled by the provisions of Sections 496 and 497 Cr.P.C. though the principles indicated therein were to be borne in mind while granting or refusing bail. The principle laid down in Shah Sawar's case was not only affirmed by the Hon'ble Supreme Court of Pakistan in the case of Abdul Karim vs. The State 1969 SCMR 312 but it was further observed that there appeared no warrant for the contention that the discretion of the Court under Sections 426 and 427 Cr.P.C. was taken away merely on the ground that a person was convicted of a bailable offence. In the case of Bashir Ahmad vs. Zulfiqar and the State it was also held that power of Appellate Court under Section 426 Cr.P.C. was not fettered by provisions of Sections 497 and 498 Cr.P.C. Reference in this regard may also be usefully made to the case of Babar Khan vs. The State 1969 SCMR 81. It would be worthwhile to mention here that since upon conviction status of an "accused" person is altogether changed therefore, while exercising power under Section 426 Cr.P.C. the basic principle; that the judgment of the trial Court, in appeal, is not be, normally, suspended unless some glaring illegality or patent error is found, has to be kept in mind though while exercising such discretion the person convicted of a bailable offence may be dealt with leniently. In this view I am fortified by the following reported judgments:- -
(1) Jamshed Azam v. The State 1990 SCMR 1393;
(2) Abdullah Khan vs. Karam Dad Khan 1968 SCMR 1064;
(3) Maqsud vs. Ali Muhammad 1971 SCMR 657;
(4) Abdul Ghafoor vs. Anwarul Hassan 1978 SCMR 149;
(5) Faqir Muhammad us. Akbar 1979 SCMR 270; and
(6) Haji Mir Aftab vs. The State 1979 SCMR 320.
6. In this case I am inclined to grant bail to the accused not for the reason that he having been charged with bailable offence is entitled to the same as of right but because of the fact that he having been found guilty under Article 4 of "the Order" for keeping in possession liquor could not have been sentenced to undergo three years imprisonment as Article 4 of the Order" provides for imposition of a maximum sentence of two years imprisonment for keeping in possession any quantity of intoxicant and the impugned judgment therefore, to that extent is not sustainable.
Further the sentence inflicted on the applicant otherwise is short and there is no likelihood of the appeal being heard in near future. Consequently, the application is allowed and applicant Rafique Ahmad alias Shika son of Muhammad Ramzan is released on bail on his furnishing bail bond in the sum of Rs. one lac with two surties and PR bond in the like amount to the satisfaction of the learned of trial Judge.