IFTIKHAR MUHAMMAD CHAUDHRY, C.J.--- This petition under Article 185(3) of the Constitution of the Islamic Republic of Pakistan has been directed against the order, dated 24th March, 2005, passed by a learned Judge in Chamber of the Lahore High Court, Rawalpindi Bench in a Criminal Miscellaneous Application No,1530/B of 2004 filed by the petitioner for suspension of his sentence pending decision of Criminal Appeal No,166 of 2004, arising out of the judgment, dated 12th April, 2004 passed by the Sessions Judge, Islamabad whereby the petitioner was convicted and sentenced on certain charges, has been dismissed.
2. Brief facts of the case are that in pursuance of F.I.R. No,326. Of 2003, dated 29th October,. 2003, a case under sections 124-A/468, 469/471/500/505-A read with sections 131/109, P.P.C. Was registered against the petitioner at Police Station Secretariat, Islamabad, on the complaint lodged by one Khurshid Ahmed and in consequence thereto, he was arrested on 29th October, 2003. The challan in the case was submitted in the Court of Sessions Judge, Islamabad and the learned trial Judge having analyzed the material available on record framed the charge against the petitioner on 24th January, 2004, in the following manner:-
(i) Convening and addressing a press conference, wherein he read out and circulated a letter with the caption of (hereinafter referred to as "the letter"), which was published in the newspapers of Islamabad dated 21st October, 2003 as a result of which, he by spoken words, by writing and by visible representation attempted to bring into hatred excited, disaffection towards the Central Government or the Provincial Government established by law.
(ii) Abetted mutiny and in consequence of said abetment attempted to seduce soldiers from their allegiance and duty.
(iii) By circulating the letter under caption noted hereinabove, and by publishing the same in the newspapers, intending to cause and incite the officers of the army to mutiny or otherwise disregard of fall in duty.
(iv) By circulating the letter and the words spoken and by writing the said letter and by visible.
(v) Prepared/got prepared a forged document i,e, the letter, noted hereinabove, purported to be on the pad of the Pakistan Army, which bear a forged monogram of General Headquarter Pakistan Army and pad, and circulated the said document intending that forged documented to be used for the purpose of cheating.
(vi) By circulating the forged document i,e, the letter, purporting to be on the pad of Pakistan Army, which bears a forged monogram of General Headquarter, Pakistan Army and pad, intending for the purpose of harming reputation of Pakistan Army, personnel of the Pakistan Army and personnel of the Government.
(vii) By circulating the letter, which bear a forged monogram of General Headquarters Pakistan Army and pad, he fraudulently, dishonestly used it as genuine.
3. The petitioner was called upon to answer the above charges, falling within the mischief of sections 124-A, 131/109, 505(a), 500, 468, 469 and 471, P.P.C. And on his pleading not guilty to the charge, the prosecution examined as many as 14 witnesses to substantiate accusation against him followed by recording of his statement under section 342, Cr.P.C. Wherein he pleaded innocence. The learned trial Judge on conclusion of the trial having found the petitioner guilty of the offences with which he was charged convicted and sentenced him vide judgment, dated 12th April, 2004 as under:-- "(i) 3 years' R.I. With fine of Rs,1,000 or in default to further undergo two months' S.I. For offence under section 124-A, P . P . C . ;
(ii) 7 years' R.I. With a fine of Rs,1,000 or in default to further undergo two months' S.I. For the offence under sections 131/109, P.P.C.;
(iii) two years' R.I. With fine of Rs,5,000 or in default to further undergo one month's S.I. For the offence under section 505(a), P.P.C.;
(iv) four years' R.I. On each count with a fine of Rs,5,000 on each count failing which to further undergo one month's S.I. On each count for offences under sections 468/471, P.P.C.;
(v) one year's R.I. And a fine of Rs,5,000 for offence under section 500, P.P.C. Two years' R.I. With a fine of Rs,2,000 or in default to further undergo 15 days' S.I. For an offence under section 469, P.P.C.
' The petitioner preferred Criminal Appeal No,166 of 2004 before the High Court and also moved an application under section 426, Cr.P.C. Being Criminal Miscellaneous No,1530-B of 2004 for suspension of sentence which was declined by the High Court vide impugned order, dated 24th February, 2005 and concluding paras whereof are reproduced hereunder:-- "The most important feature of the case is that the convict would not be placed or treated with accused on same footing while considering question of bail. It is settled principle of criminal law that after conviction the initial presumption is against innocence of convict. Therefore, a person convicted of a non-bailable offence by a competent Court would not be entitled to be enlarged on bail by the Appellate Court except in special circumstances. In this respect reference can be made to the case of Asif Butt v. State 2000 YLR 1145.
' Since no exception material has been pointed out by the learned counsel for the petitioner to make a base for suspension of sentence of the accused-petitioner and he miserably failed to persuade this Court to suspend the conviction and sentence of accused-petitioner, therefore, I see no substance in this petition which is dismissed."
4. Learned counsel appearing for petitioner at the first instance, contended that the trial for the charge under section 124-A, P.P.C., without adhering to the provisions of section 196, Cr.P.C., was not legal and consequently, the conviction and sentence of three years' R.I. Awarded to him under section 124-A, P.P.C. Is bad in the eyes of law and is not sustainable whereas the bare reading of the letter allegedly circulated by the petitioner would show that necessary ingredients of section 131, P.P.C. Were missing and no charge could be framed under this section, therefore, conviction and sentence under section 131, P.P.C. Is nullity in law, whereas the sentence on the remaining charges being short, almost has been served by the petitioner, therefore, in these circumstances, pending disposal of his appeal before the High Court, he would be entitled to be released on bail by suspending his sentence under section 426, Cr. P. C .
5. Learned counsel appearing for caveat contended that the objection regarding defect in the trial raised by the learned counsel is not tenable because the same objection was raised by the petitioner before the trial Court which was overruled by the trial Court vide order, dated 24th January, 2004 and this order was further maintained by the High Court by dismissing the criminal revision petition filed by the petitioner vide order dated 8th April, 2004. Thereafter, the petitioner did not challenge the order of the High Court before this Court, which attained finality and consequently, the above objection cannot be entertained at this stage for the purpose of suspension of sentence.
6. The learned counsel for the petitioner has not denied that the above objection was raised before the trial Court and on its rejection, the petitioner filed a criminal revision in the matter before the High Court which was dismissed. In view thereof, the objection so raised by the learned counsel is not entertainable rather in the light of decision of the A High Court, dated 8th April, 2004 on the subject, the learned counsel may have not urged the same in this petition before us at this stage for suspension of sentence and consequently, we agree with the learned counsel for respondent, that objection is devoid of substance to be sustained.
7. Learned counsel for the petitioner arguing the case on merits, has raised the following contentions in support of this petition:-
(a) The complainant having entered into the cafeteria of the National Assembly unauthorizedly, had no right to lodge complaint regarding the commission of an offence in the precincts of National Assembly, because only the Speaker being custodian of the House, could authorize the lodging of the report with the police. In view thereof, the trial of the petitioner followed by his conviction on the basis of complaint lodged by an outsider/ stranger was bad in law and being coram non judice is not sustainable.
(b) The petitioner being a Parliamentarian had a right to speak in the precincts of National Assembly, in exercise of his fundamental right guaranteed by the Constitution and thus, neither has he committed any offence, nor a criminal case could be registered against him and in that criminal prosecution was unconstitutional.
(c) That as per prosecution own version, a few other M.N.As. Were also present in the press conference, convened by the petitioner and they having participated in the Conference have appreciated his speech but none of them was either charged or examined as a witness in support of accusation against the petitioner.
(d) The prosecution of the petitioner militates against the Constitutional guarantees, provided to the Parliamentarians to speak in the Parliament and since the cafeteria is part of the Parliament, therefore, in terms of Article 19 of the Constitution, there could be no criminal liability for making such a speech in the cafeteria.
(e) The judgment of the trial Court suffers from serious contradictions, discrepancies and inherent defects which are not curable and consequently the conviction of the petitioner may not be sustainable but learned Judge in the High Court without attending this important aspect of the case and considering the contention raised for suspension of sentence, dismissed the application under section 426, Cr:P.C. For irrelevant consideration.
' The petitioner has already undergone the almost full term of his sentence on five counts out of six counts and since the sentence for a term of R.I. For seven years awarded to him under section 131, P.P.C. Is eat sustainable, therefore, he cannot be kept in custody for an indefinite period, particularly in view of the fact that there is no likelihood of hearing of appeal filed by him before the High Court in the near future.
8. On the other hand, learned counsel appearing for Caveator contended that:--
(i) Khurshid Ahmed (complainant) and Capt. Jehanzeb Zahoor Awan (P.Ws.) visited the National Assembly on the day of the happening of the incident on valid passes, issued to them by the office of the Assembly; therefore, they were most natural witnesses.
(ii) Notwithstanding the fact that petitioner is a Parliamentarian, he was tried for committing a criminal offence and was also found guilty of the charge by the trial Court, therefore, he could not claim immunity from, criminal liability under the Constitution.
(iii) The question, as to whether the cafeteria is part of the House, cannot be determined on the oral assertion and no evidence has been brought on record on this behalf, therefore, the contention of learned counsel that cafeteria includes in precincts of assembly has no substance.
(iv) Learned trial Court having thoroughly scanned the evidence, available on record , concluded that the charge against the petitioner stands proved and finding of guilt being based on evidence cannot be commented upon without deep appreciation of the evidence, which is not warranted at this stage in this petition for leave to appeal filed against the order of the High Court passed in an application under section 426, Cr.P.C. Which was disposed of strictly in accordance with law and as such the impugned order would call no interference of this Court.
(v) That no attempt was made on behalf of the petitioner for early fixation of the appeal before the High Court and mere on the basis of oral assertion, the argument of the learned counsel for petitioner that appeal is not likely to be heard in near future has no substance.
(vi) The petitioner was arrested on 29th October, 2003 and till now he has undergone a total period of 2 years, 11 months of his imprisonment with the benefit of section 382-B, Cr.P.C. Whereas his period of detention after conviction on 12th April, 2004 is only two and half years and consequently, he cannot claim suspension of sentence as of right particularly in view of the fact that judgment of the trial Court being based on sound principle of criminal administration of justice is not likely to be disturbed.
9. Mr. Nasir Saeed Sheikh, learned Deputy Attorney-General adopted the arguments advanced by the counsel for the respondent.
10. We have heard the learned counsel for the parties and with their assistance have also gone through the impugned order carefully. This is well-settled principle that sentence under section 426, Cr.P.C. Cannot be suspended unless it is shown that it is based on no evidence and there is no ultimate possibility of the conviction of a person to sustain. In Muhammad Saleem v. State PLD 2006 SC 483 it has been held that:-- "There is no cavil to the proposition that appellate court in exercise of its power under section 426, Cr.P.C. May in a suitable case, suspend the sentence of a convict and grant him bail pending disposal of his appeal and notwithstanding any material difference in the principle governing for grant of bail under sections 497 and 426, Cr.P.C: the consideration for suspension of sentence and grant of bail pending trial may not be the same, therefore, the distinction must be adhered to for exercise of power under the above provisions in proper manner. The power of appellate court under section 426(1), Cr.P.C. Is not limited and the court may, pending disposal of an appeal, suspend the sentence of a convict in an appropriate case in its discretion for good and sufficient reasons but this power of suspension of sentence and grant of bail is not wider than that of under section 497, Cr.P.C. And unless it is shown that conviction is based on no evidence or being based on an inadmissible evidence, is not ultimately sustainable, the grant of bail under section 426(1), Cr.P.C. With the consideration of ascertaining the question of guilt or innocence on merits through appraisal of evidence is not justified as the bail either under section 497 or 426(1), Cr.P.C. Could be allowed only on the basis of tentative assessment of evidence."
11. This may be noted that apparently the order of the High Court under challenge is not suffering from any infirmity, as the learned Judge in chamber in the High Court having taken into consideration all aspects of the matter in the light of the material available on record and on the basis of tentative assessm ent of evidence has held that no case for suspension of sentence was made out and we may point out that this Court under Article 185(3) of the Constitution of Islamic Republic of Pakistan is not obliged to interfere .In the order of the High Court declining to suspend the sentence of a person under section 426, Cr.P.C. In any case, in the present petition, most of the questions, raised by the learned counsel for the parties, cannot be answered without deep appreciation of evidence and such an exercise is unwarranted for the purpose of suspension of sentence and grant of bail after conviction.
13. 12(sic) The cursory look at the evidence produced by the prosecution, particularly the statement of Khurshid Ahmed (complainant) and Capt. Jehanzeb Zahoor Awan, (P.Ws.) who happened to be in the cafeteria of the Assembly when the petitioner having convened the press conference, distributed the letter (Exh.P.J.) amongst the participants of the press conference and others, would prima facie - suggest the commission of the offences by the petitioner for which he has been charged and convicted and subject to the detail scrutiny of the evidence by the High Court in appeal in our tentative opinion, the prosecution has been able to prove all the charges.
14. The contention of Mr. Muhammad Akram Sheikh, Senior Advocate Supreme Court learned counsel that petitioner has already undergone a considerable portion of the sentence of seven years' R.I. Awarded to him under section 131, P.P.C. And almost has completed the full term of his sentence on remaining charges, has no force because such reason may not as such be considered a ground per se to suspend the sentence of an accused. We may point out that this Court in the case of Fazal Muhammad v. The State 2002 SCM R 1211, in which this Court dismissed the application for suspension of sentence of seven years' R.I. Awarded to the convict with fine of Rs,5,000 and in default of the payment of fine to undergo S.I. For two months and declined to grant the leave with the following observation:-- "The arguments raised by the learned counsel for the petitioners go to the root of the case which can only be appreciated at the time of hearing of the appeal by the learned High Court when the entire evidence adduced by the parties would be thrashed out. In the circumstances of the present case no illegality has been committed by the learned Single Judge of the Lahore High Court in dismissing the application for suspension of the sentence of the petitioners."
' Similarly, in the case of Ghulam Abbas v. State 2003 SCM R 911, the petition seeking suspension of sentence was dismissed with the observation that refusal of the High Court to suspend the sentence on the ground that contention raised in support thereof involved deeper appraisal of evidence which was not permissible under section 426, Cr.P.C. Was based on valid consideration.
15. In the light of forgoing discussion, we are of the considered opinion that the learned High Court has committed no illegality in declining bail to the petitioner by suspending his sentence and the arguments so raised by the learned counsel in support of this petition have also not persuaded us to agree with him to undertake the exercise of deeper appreciation of the evidence for suspension of sentence, consequently, we hold that impugned order being free from any legal infirmity or perversity, admits no interference. As a result of the above discussion, this petition is dismissed and leave declined.