1. 'SHAHID ANWAR BAJWA, J. The present appellant was convicted in Crime No,153 of 2008 of Police Station Saddar, Jacobabad, vide judgment dated 17-9-2009. The following punishments were awarded to him.
(1) Daman of Rs,40,000 and sentence of three years for causing injuries to Saddaruddin.
(2) Fine of Rs,200 for each offence under sections 148, 149, P.P.C. And in default of payment of fine to suffer imprisonment for 15 days.
(3) For offence under section 324, P.P.C. Imprisonment for 5 years and fine of Rs,2000.
2. 'All the sentences were ordered to run concurrently. Benefit of section 382(B), Cr.P.C. Was also extended to the accused person. This Miscellaneous Application has been filed under section 426 Cr.P.C. It is stated that since the imprisonment is short and it is expected that appeal shall take a long time, the appellant be ordered to be released on bail. Learned counsel for the appellant has relied upon the cases of Abdul Hameed v. Muhammad Abdullah and others 1999 SCM R 2589 and judgment of singly bench of this Court passed in the case of Nazeer Ahmed and 2 others v. The State 2005 PCr.LJ 657.
3. Since it is an application under section 426, Cr. PC, it may be relevant to reproduce subsection (1) of section 426, Cr . PC: ---
426. Suspension of sentence bail. (1) Pending any appeal by a convicted 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 and, also, if he is in confinement that he be released on bail or on his own bond:---
(a) to imprisonment for a period not exceeding three years and whose appeal has not been decided within a period of six months of his conviction:
(b) to imprisonment for a period exceeding three years but not exceeding seven years and whose appeal has not been decided within a period of one year of his conviction:
(c) to imprisonment for life or imprisonment exceeding seven years and whose appeal has not been decided within a period of two years of his conviction.
4. A perusal of above section indicates that the legislature has divided sentences into three grades:-- -
(i) Where the sentence awarded is less than three years:
(ii) Where the sentence is awarded more than three years but less than seven years.
(iii) Where the sentence awarded is either life imprisonment or imprisonment for more than seven years.
5. 'Having graded the sentences thereafter the legislature in its wisdom fixed periods of six months, one year and two years and commanded that if a person has been behind the bars for any of these periods depending upon length of sentences, the Court may for reasons to be recorded order that execution of sentence or order appealed against be suspended if the appeal is not decided within the period referred to the above. Facts of Abdul Hameed (supra) case were that he was sentenced to three years imprisonment under section 406, P.P.C. He filed an appeal and the complainant filed revision for enhancement of the sentence. The appellate Court vide its judgment dated 8-9-1998 enhanced the sentence to five years. Against this order the petitioner filed an application under section 561-A. Cr.P.C. And a revision before the High Court. An application under section 426, Cr.P.C. Was filed which was declined by the High Court. It was argued in the Supreme Court that the learned Additional Sessions Judge had enhanced the sentence without issuing notice to the petitioner. This position was controverted by the other side. The Supreme Court observed that without going to the question whether notice was issued or not. Since the sentences were short and as the sentence was enhanced by the Additional Sessions Judge from three to five years, it was fit case where the High Court should have exercised discretion in favour of the convict.
6. Key aspect of this case may be noticed, it was case where the sentence was enhanced from three to five years and the question of enhancement was pending and this was the specific reason noticed by the Supreme Court. Nazeer Ahmed's case (supra) merely relied upon. Abdul Hameed's case (supra) without noticing this distinguishing feature of Abdul Hameed's case.
7. In the present case judgment was announced by the Court below on 17th September, 2009 and sentence awarded is five years. Therefore, the case falls in 2nd category of section 426, Cr.PC.
8. 'Consequently, this application is dismissed. However, the appellant shall be at liberty to file fresh application after he has undergone sentence of one year including remissions allowed to him under the law.