Mian Shakirullah Jan, J.--The respondent/convict, who, alongwith other co-convict, after being convicted by the trial Court under Section 302/34/109 PPC has succeeded in getting the suspension of his sentence and release on bail, during the pendency of appeal, from the High Court through the impugned order, the complainant and the State both aggrieved of the order, filed two separate criminal petitions vide Crl. M.A. No. 199/2006 and Crl. P. No. 652-L/2006 for setting aside the order of the High Court, with the following brief facts.
2. The complainant Raja Muhammad Hussain lodged a report with the police alleging therein that on the day of occurrence i.e., on 07.03.2002 while he alongwith his deceased brother Raja Haji Muhammad Riaz were sitting on their tube-well and talking to each other, two accused Naseer Ahmad and Muhammad Younas Shah duly armed with .7mm Rifles came there and Muhammad Younas Shah after raising a Lalkara that Haji Muhammad Riaz be taught a lesson for litigation fired at the deceased who kiddy escaped, then Naseer Ahmad accused fired at the deceased which hit him. The motive was stated to be previous litigation with the accused. After the registration of the case, during the investigation, a supplementary statement of the complainant was recorded where he also charged the present petitioner alongwith his brother Shamas Tabraiz and mother Mehr- un-Nisa, widow, for hatching conspiracy for the murder of the deceased and Section 109 was also added for the alleged abetment on the part of petitioner and his brother and mother. In this respect, statement of the two PWs i.e., Muhammad Ishaq PW-7 and Qamar Zaman PW-8, were also recorded wherein they have alleged that they on 20.01.2003 while they were going across the Bethak of the petitioner heard their voices and the name of Haji Muhammad Riaz (deceased) which made them conscious and they have also overheard the alleged conspiracy plan by the three accused. The trial of the four accused i.e., Mst. Mehr-un-Nisa, Naseer Ahmad, Muhammad Younas Shah and the present petitioner was held while Shamas Tabraiz was declared as absconder. At the conclusion of the trial the learned trial Court convicted all the four accused including two for conspiracy for the murder of a single deceased and Mst. Mehr-un-Nisa was sentenced to imprisonment for life while the three accused were sentenced to death, in addition to the compensation of Rs. 50,000/- each-to be paid to the legal heirs of the deceased and Rs.
50,000/- each to be paid to the complainant for mental anguish and psychological damage.
3. During the pendency of, their appeals before the High Court, Mst. Mehr-un-Nisa succeeded in getting sentence suspended and her release on bail from the High Court, which order was maintained by this Court and same is the case of the petitioner (of getting bail) and which order is now under challenge before us.
4. The learned counsel for the petitioner has contended that the High Court has proceeded on wrong premises by holding that the PW-7 & 8, who are witnesses of the conspiracy, are both relative of the complainant party and in this respect he has referred the statement of PW-7 that he has not been cross-examined in order to elicit his so called relationship. On the legal parlance he has contended that in case of death sentence the suspension of sentence is uncalled for and which is also the result of deep appreciation of the evidence which has been disapproved by the superior Courts and in this respect he has cited the cases of Muhammad Nawaz v. Muhammad Nawaz alias Naji and others (1997 SCM R 1521), Farhat Azeem v. Waheed Rasul and others (PLD 2000 SC 18), Allah Ditta Khan u. The State (PLD 2002 SC 845), Muhammad Salem and another v. The State (PLD 2006 SC 483).
5. The learned D.P.G appearing in Crl. P. No. 652-L/2006 while addressing the Court has confined her arguments only to the observations made in the order regarding the merits of the case by stating that the said observations may be directed to be ignored at the time of decision of the main appeal and she did not press the setting aside of the order and canceling the order of suspension and grant of bail to the respondent. The learned counsel for the respondent While supporting the impugned order has contended that the grounds which weighed with the learned High Court are not the one which can be said as deep appreciation of the evidence rather it is a tentative assessm ent.
6. We have attended to the rival contentions of the learned counsel for the petitioner/complainant and the learned counsel of the respondent and also the D.P.G who, as already stated, is not for setting aside of the order and cancellation of the bail, except the prayer, which has already been noted above; with regard not to take into consideration the observations of the Court on merits of the case at the time of final decision of appeal. We have perused the impugned order.
7. Section 426(1) Cr.P.C. empowering the Court with a discretionary power in the matter of suspension of sentence, the Court may or may not suspend the sentence, however, if an order favourable to the convict, by suspending his sentence, is to be passed then the reasons be given for that, unlike Section 426(1-A) where it is not a discretion of the Court but the grant of bail is mandatory and for its refusal the reasons be given, reflecting that grant of bail is a rule while refusal is an exception in the case covered by sub-section (1-A). Whereas under subsection (1) it has been made obligatory that in case of the suspension of sentence the reasons will have to be recorded. The two provision's, one is under sub-section (1) and the other is under sub-section (1-A) of Section 426, are unlike and in contrast to each other as in the former it is the discretion of the Court and in case of grant of bail the reasons will have to be recorded while in the latter it has been made obligatory that the sentence shall be suspended with a further provision that in case of refusal the reasons will have to be recorded. Section 426(1) though has made essential the recording of reasons in case of suspension of sentence but has not prescribed any guideline or the manner in which such a discretion is to be exercised as how and what Would be the criteria for the recording of the reasons. Since these provisions, under Section 426(1) are analogous to the one contained in Section 497 Cr.P.0 as in both the cases the sentence or detention is to be suspended pending hearing of the appeal/trial and the convict or the dentinue is to be released on bail with only difference that in the former case the person is a convict one, already found guilty, while in the latter he has been charged only and to face trial and is still to be proved guilty. It would be appropriate, in the absence of any guideline, to follow the one provided under Section 497 Cr.P.C on the principle that where a statute lays down certain principles for doing some acts they may be taken as a guideline for doing something of the same nature which is in the discretion of the Court as held in the case of Maqsood v. Ali Muhammad (1971 SCM R 657) and which principle, as later on, was re-affirmed by this Court in the case of Peer Mukaram-ul-Haq v. National Accountability Bureau (NAB) through Chairman and others (2006 SCM R 1225). In Section 497 Cr.P.C., the existence and non-existence of the reasonable grounds for believing that the person is guilty of the offence and the scope of further inquiry are the criteria/hallmarks and for arriving at such conclusion the tentative assessm ent and not the minute or detailed assessment of the evidence has been made permissible the principle laid down by this Court and re-affirming repeatedly. Similarly, the same guidelines have been laid down by the superior Courts that in case of suspension of sentence, only the tentative assessm ent of the material available evidence and of the judgments has been made permissible and the detailed appraisal of evidence was held to be avoided as held by this Court in the cases of Allah Ditta Khan (supra) and Farhat Azeem (supra). However, the principles laid down by this Court in the aforesaid judgments qua following the guidelines prescribed under Section 497 Cr.P.C while deciding application under Section 426(1) Cr.P.C but without being controlled by the aforesaid Section i.e. 497 Cr.P.C as held in the case of The State u. Shah Sawar (1969 SCM R 151) and such powers i.e., the suspension of sentences and grant of bail under Section 426 Cr.P.C are not wider than the power to release a person on bail under Section 497 Cr.P.C as held in the case of Bahar Khan v. The State (1969 SCM R 81) but rather narrower.
8. Following the aforesaid principles, as laid down by this Court, i.e., the tentative assessment of the material available on the record including the judgment and the evidence is to be made and not their examination in detail for which purpose an overall view of the facts and circumstances to be taken. A balance to be struck and a line of distinction be drawn in making tentative assessment and detailed scrutiny, of the evidence e.g., by looking at the judgment and by taking a broad view of the judgment and to analyze as to whether the conviction has been passed on the appreciation and on the basis of evidence which is not contrary to the principles laid down by the superior Courts and one can prudently be of the view that such conclusion ought not to have been arrived at. The most relevant factor for the exercise of power of suspending the sentence is the decree of probability; the appeal stands off being finally allowed. The decree of probability has to be determined on the basis of prima facie satisfaction, The next question would be that the Court at the time of hearing of the appeal would be influenced by such like observations which may sometimes be made by a superior Court on reaching the matter there. It is for that Court not to be influenced by such like observations as that are to be taken as tentative and only for the limited purpose of deciding the question at that time pending before the Court for suspension of sentence and there may be every possibility that sometimes because of lack of proper assistance both on factual side as well as on the legal plane, as the matter may not, be -taken so serious because of its interim nature. The Court at the time of deciding the appeal may ignore such observations or even may not at all advert to them, In the instant case while applying the test as laid down by this Court in the afore referred judgments, an additional factor of the rule of consistency is also available to the respondent as the bail which has already been granted to the co-convict Mst.
Mehr-un-Nisa almost on similar grounds and which has been upheld by this Court also entitle him to the grant of bail.
9. We are of the view that a broad view of the judgment and, also to some extent, of the evidence has been taken and which prima facie, tentatively lead the Court to, a conclusion that the discretionary power bestowed on it to be exercised in favour of the respondent and for which due compliance of the statutory provisions have been made by giving reasons. The view taken by the High Court was found to be a proper exercise of the Court's discretion under Section 426 Cr.P.0 which does not deserve interference as has been done in the cases of Abdul Ghaffar v. Anwarul Hassan etc. (1978 SCM R 149) and Faqir Mohammad v. Akbar etc. (1979 SCM R 270) and particularly when it is an order of setting aside of the order of suspension of sentence and cancellation of bail.
The principle is that the Court does not interfere in a case of bail unless circumstances are altogether of exceptional character and the refusal might entail risk of grave illegality or clear abuse of process or some gross act of injustice e.g., victimization. The order of grant of bail ought not to be interfered with lightly as held in the case of Sardari-and another v. The State (1968 SCM R 1063).
10.In view of the above discussion, we see no justification to interfere with the order of the High Court. Resultantly, these petitions are dismissed, leave declined.