1. C.M. No.1 of 2009 The learned counsel has filed this criminal miscellaneous in pending Criminal Appeal No.202- J/2008 filed by appellant, Mubarak Ali son of Muhammad Shafi. The appellant was convicted and sentenced by the learned Addl. Sessions Judge/Judge, Special Court, CNSA Gujranwala. The appellant was convicted and sentenced under section 9(c), CNSA to life imprisonment on 4-7- 2008. He was also fined Rs.20,000 and in default whereof would further undergo imprisonment for six months. Benefit of section 382-B, Cr.P.C. was awarded to him.
2. The appellant was implicated in F.I.R. No.332/05, dated 20-9-2005, under section 9(c), CNSA, 1997 at P.S. Dhullay, District Gujranwala.
3. 2.Earlier an application, C.M. No.1/2008 was also filed by the appellant for suspension of sentence but it was withdrawn on 23-12-2008. The instant application is a second application.
4. 3.The instant application has been filed on grounds: That the learned trial Court has erred in law while passing the conviction order, the recovered narcotic were not properly weighed; that P. Ws in cross-examination gave wrong colour of recovered narcotics "Bhukhi", that the recovery was joint; that there was no proof that recovery was effected from the petitioner/appellant; that if sentence is not suspended the 'appellant would suffer irreparable loss; and there is no likelihood of fixation of appeal in the near future.
5. 4.It has become common to file an application for suspension of sentence along with petition of appeal. Practically application for suspension of sentence is argued alike an application of bail under sections 497/498, Cr.P.C. Usually, the same grounds are urged, whereas both are different subjects and should be argued on different grounds as contemplated under the law. A bail application is moved under sections 497/498, Cr.P.C. and applicant/petitioner is not a convicted person hence presumed an innocent person.
6. 5.On the other hand, application for suspension of sentence under section 426, Cr.P.C. is filed after conviction recorded by a competent Court on the basis of evidence adduced before the Court.
7. Therefore, after conviction presumption of innocence is reversed. For the same reason, section 426, Cr.P.C. requires reasons to be recorded for suspension of sentence which is not required in case of dismissal or refusal of such an application. To make ourselves more clear, a brief overview of section 497, Cr.P.C. and section 426, Cr.P.C. would be relevant and fructuous.
8. 6.Reading of section 497, Cr.P.C. indicates that offences or cases in which post arrest bail in non- bailable offences may be granted, have been classified in three categories. First category covers cases which provides sentence of less than 10 years; second category covers cases for which reasonable grounds exist for believing that the applicant/petitioner has been guilty of an offence punishable with death, imprisonment for life or imprisonment for 10 years. Exceptions are provided to the cases falling in second category i.e. if the applicant/petitioner is under the age of 16 years, sick or infirm. Third category covers cases of women accused. If bail application is of a woman accused, the offence under which she is implicated shall be treated bailable offence notwithstanding anything contained in schedule II of the Code or any other law for the time being in force. However, exceptions to the above legal position are also provided in section 497, Cr.P.C.
9. 7.On the contrary section 426(1), Cr.P.C. reads that during the pendency of appeal by a convict person, the Appellate Court may, for reasons to be recorded by it in writing, order that the execution of the sentence or order appealed against be suspended. If the appellant is in confinement, the Court may pass an order of his release on bail or on his bond. Few points in relation to the above deserve to be noted. Application under section 426, Cr.P.C. can be filed by a convict person; by a convict who has filed an appeal; appellant may not be in confinement. For example, if he has been convicted and awarded sentence of fine only; if the appellant is in confinement, he can be directed to be released on bail or on his own bond. Subsection (2) of section 426, Cr.P.C. says that if appeal is filed by a convict person before any other Court subordinate to the High Court even then High Court may exercise power mentioned under section 426,Cr.P.C. Subsection (2-A) of section 426, Cr.P.C. deals with cases where any person is sentenced to imprisonment in a non-bailable offence and an appeal lies from that sentence. Sentence of such an accused person can be suspended by Court to enable the convict person for a sufficient period to present his appeal or to obtain the orders to enable him to file appeal. Under subsection (2-B) of section 426, Cr.P.C. High Court may suspend any sentence imposed by him if a convict person has been granted special leave to appeal to the Supreme Court, if the convict is in confinement. According to subsection (3) of section 426, Cr.P.C. when the appellant is ultimately sentenced to imprisonment, or imprisonment for life, the time during which he is released under section 426 shall be excluded not computing the term for which he was so sentenced.
10. 8.The above discussion makes it abundantly clear that grounds and purpose of providing above mentioned two sections in the Code are entirely different. Section 426(1), Cr.P.C. is not divided into categories or classes as section 497(1), Cr.P.C. is. There is no concept of offences falling in prohibitory clause or falling in non-prohibitory clause in section 426, Cr.P.C. as provided in section 394, Cr.P.C. While considering a bail application under section 497, Cr.P.C. the Court is conscious of presumption of innocence in favour of an applicant/petitioner, whereas no such presumption exists in favour of a convict person who is found guilty by a competent Court. Under section 497(1), Cr.P.C. bail is generally granted as a rule in cases which provide punishment less than 10 years, refusal is an exception in certain circumstances, whereas, no such demarcation is made in section 426(1), Cr.P.C. In both sections, the Court has discretion but language of both sections show that discretion under section 497(1), Cr.P.C. is more liberal and lenient than under section 426(1), Cr.P.C.
11. Leniency becomes more stringent in cases where convict person seeks suspension of his sentence in narcotic cases, in view of effect of sections 51 and 47 of CNSA on section 497, Cr.P.C. read with section 426, Cr.P.C.
12. 9.If an Appellate Court feels that the interest of justice requires the convict person to be enlarged on bail during the pendency of his appeal, it cannot allow him bail until it records its reasons in writing 1970 SCM R 540. According to the Hon'ble Supreme Court of Pakistan, "powers under section 426 are not controlled by provisions of sections 496 and 497, Cr.P.C." (1969 SCM R 151). Similarly, in another judgment, it was observed that after conviction in a criminal jurisdiction presumption is against innocence of a convict (1984 PCr.LJ 1503) . In another case it was observed on similar lines that initial presumption of innocence in favour of accused is substantially dislodged upon his conviction by a competent Court. Person convicted in a non-bailable offence by a competent Court would not be entitled to be enlarged on bail normally, by appellate Court except in circumstances mentioned in section 426, Cr.P.C. (1986 PCr.LJ 64). Yet in another case, the Court held that possibility of petitioner's abscondance after his release on bail being not ruled out the Court is not to readily enlarge such convict on bail unless some good and sufficient reasons and ends of justice demand such indulgence in his favour, (1983 PCr.LJ 22).
13. 10.Suspension of sentence was refused where same was sought on grounds touching merits involving reappraisal of entire evidence as such exercise at bail stage is not expedient to undertake 1981 SCM R 859. It was further observed while deciding petition for suspension of sentence appellate Court would not undertake reappraisal of entire evidence but would confine its consideration to the infirmities in judgment of trial Court with reference to grounds urged in memo. of appeal which would show that conviction was not sustainable in law. On reaching conclusion that conviction was not sustainable, the Appellate Court can suspend sentence. Appellate Court can also take into consideration the fact while suspending sentence and enlarging convict on bail, that the sentence awarded, was very short and that the time likely to be taken in disposal of appeal would be substantial (1986 PCr.LJ 64), (PLD 1982 BJ 28) . According to the Hon'ble Supreme Court and some other courts, acceptance of an appeal is a condition precedent for granting bail. Bail to a convict person is not a matter of right irrespective of whether the offence is bailable or non-bailable and should be allowed only when after reading the judgment and hearing the accused it is considered justified. Further, the recording of reasons for granting bail is mandatory. Reasons need not to be recorded refusing bail. (1970 PCr.LJ 1139, 1970 SCM R 5407). In another case the Court observed that exceptions for grant of bail mentioned in sections 497 and 498, Cr.P.C. can be noticed by the Court while considering suspension of sentence of release on bail under section 426, Cr.P.C. The Court held that in such consideration exceptions for grant of bail under sections 497 and 498, Cr.P.C. and conduct of convict if he was on bail during trial shall receive attention of Court. (1984 PCr.LJ 1122; 1983 PCr.LJ 184). It was noted by the Hon'ble Supreme Court that there can be no such general rule that in every case where a person is convicted of a bailable offence he must be enlarged on bail during the pendency of appeal. Section 426, Cr.P.C. clearly gives a discretion to the High Court to grant or refuse bail although this discretion must, like all other discretions be exercised upon sound judicial principles. (1969 SCM R 312, 1969 SCM R 151).
11. The learned counsel himself referred to two latest judgments on the point. In the precedent, the Court observed that: "admittedly nothing had been recovered from the petitioner's possession and the petitioner had been implicated only upon a disclosure made by a co-accused during police custody. Admittedly, the said witness had not seen any passing of money on that account and he also not specified the narcotics substance, being sold at that time. In these circumstances, the question regarding culpability of the petitioner requires serious reconsideration at the time of hearing of the main appeal. Even otherwise the sentence of imprisonment passed against the petitioner by the learned trial Court is relatively short and there is no likelihood of fixation of the main appeal for regular hearing in the near future" (2008 YLR 1255). Obviously, the above circumstances of culpability and short term of punishment are not available to the petitioner in the instant case. The learned counsel referred to another judgment of the Hon'ble Supreme Court i.e. 2008 SCM R 660. In the said judgment, it was observed as under:-- "Since both the parties have admitted that the petitioners are in jail since 21-3-2001, there is no likelihood of their appeal being heard in the near future, the material sprinkled on the paper was only 2% of the paper in case of brown with mild coating and 6% in the case of brown with white coating which if calculated would come only to 5.6 and 16.8 grams only, which is quite a small amount, as per report furnished by the. Pakistan Council of Scientific and Industrial Research, the recovered material including the coating material did not contain "heroin" and there are two conflicting reports therefore, in our view the petitioners have made out a case for suspension of their sentences."
14. Reading of the above extract shows that the application under section 426, Cr.P.C. was allowed on grounds of conflicting opinions of two reports, small quantity of recovered narcotics and long incarceration. The same grounds are not available to the petitioner in the instant case.
15. 12.In the case in hand, petitioner has been awarded life imprisonment vide the impugned order dated 4-7-2008 and the appeal of petitioner was filed in year 2008. The petitioner/appellant was arrested red handed with huge amount of "Bhukhi Post", therefore, instant case is distinguishable from those cases enumerated in the preceding paras.
16. 13.As a result of above discussion, this criminal Miscellaneous No.1 of 2009 is dismissed.