' AQEEL AHMED ABBASI, J.---By this order, I intend to dispose of the application i.e, M.A. No,987 of 2010 filed by the appellants/accused under section 426 Cr.P.C. Seeking bail by suspending the conviction during the pendency of instant appeal.
2. The learned counsel for the appellant while arguing the instant application on 19-4-2010 submitted that the instant appeal is pending since, 2004 and both the accused have already undergone substantial portion of their respective sentence and only about 5 years unexpired A portion left to be served and the appeal, has not been proceeded as yet, therefore, he prayed that the instant application may be allowed and the sentence may be suspended and appellant may be enlarged on bail. In support of his contention the learned counsel placed reliance on the following judgment:--
(1) Makhdoom Javed Hashmi v. The State 2008 SCMR 165
(2) Shahid v. The State 2008 SCMR 1595
(3) Muhammad Tariq v. The State 2006 MLD 511 (Lahore)
(4) Anwar-ul-Haq v. National Accountability Bureau PLD 2009 SC 388
(5) Amjad Hassan Gurchani v. Sajjad haider Khan 2004 SCMR 12
(6) Mumtaz Ali and another v. The State 2009 MLD 61
(7) Muhammad Azam v. The State 2003 MLD 1731
(8) Mian Munir Ahmad v. The State PLD 2002 Karachi 497.
' Reliance was also placed on two unreported cases in Criminal Appeal No,89 of 1999 and Criminal Appeal No,64 of 2009 in support of his arguments wherein as per learned counsel under similar circumstances, benefit of section 426, Cr. P.C. Was given to the accused. Learned counsel further submitted that the co-accused Muhammad Saleh has duly been acquitted in the instant crime.
3. Conversely, Syed Miral Shah, learned Deputy Prosecutor-General argued that according, to Notification of Home Department, in case of life imprisonment the accused is required to undergo at least 15 years' imprisonment in Jail. He requested for time to place such notification and the matter was adjourned to 23.04.2010 to be taken up at 11-00 a.m. On 23-4-2010 Mr. Shahid Shaikh, learned APG, attended the Court and referred to Rule 217 of Jail Manual to show that in case of life imprisonment the accused is to serve out 15 years in Jail. Similarly Mr. Ayaz 'Hussain Tunio, learned counsel for the complainant also opposed the suspension of the sentence and submitted that appeal has been filed against acquittal of co-accused Muhammad Saleh which is pending before Division Bench of this Court, and the learned Division Bench has ordered that instant appeal be proceeded along with Criminal Acquittal Appeal. To this submission the learned counsel for the appellants vehemently opposed such contention of the counsel for the complainant and submitted that such argument is misleading as that Criminal Acquittal Appeal has already been dismissed for non-prosecution on 3-12-2008 and has not yet been restored even after expiry of more than toe year and five months now, and the appellants/accused are suffering on this account. Learned counsel for the appellants insisted that the instant application may be decided on its own merits as this is a case of hardship, whereas the conduct of the complainant in this regard is seriously objectionable. The counsel for the complainant requested for one more chance to get the Criminal Acquittal Appeal restored before the next date of hearing and thereafter he will argue the instant application on merits. Such request was vehemently opposed by the learned counsel for appellants, however, as a last chance to the counsel for complainant. The matter was adjourned to 14-5-2010 with the mark of caution that if said Criminal Acquisition Appeal is not restored the instant application shall be proceeded on its own merits.
4. On 14-5-2010 the learned counsel for the complainant, in spite of specific direction of this Court on 23-4-2010, could not comply with such direction and once again requested for further time in this Jegard. Learned APG also requested for further time to assist the Court. Such adjournment was vehemently opposed by the learned counsel for appellants. The learned counsel submitted that neither Rule, 217 of Jail Manual is attracted in the case of application of 426, Cr.P.C. Nor the acquittal or conviction of some of the co-accused would have any serious bearing on the merits of application under section 426, Cr.P.C. In the case of present appellants. He further submitted that where some accused have been convicted and some have been acquitted, on the same role and same evidence the matter can be heard independently on its own merits. In this regard he further placed reliance in the cases of Tanvir v. State (PLD 2010 Lahore 156) and Jawad Ali v. The State (2010 PCr. LJ 700 Karachi). To this submission the learned APG in view of the facts and circumstances of this case, and on perusal of the Jail Roll submitted in the case of appellants, frankly conceded that the appellants have already undergone substantial period of sentence, therefore, may be released on bail by suspending conviction. Learned counsel for the complainant could not controvert such submission however requested for further time. Once again in order to provide complete opportunity to the counsel for complainant the matter was adjourned to 27-5- 2010. On 27-5-2010, when the matter was taken for hearing the learned APG submitted the current Jail Roll dated 21-5-2010 in respect of the present appellants/accused issued by Superintendent, Central Prison Hyderabad which was taken on record. Both the learned counsel as well as the learned APG finally argued their case and reiterated their submission as stated hereinabove.
5. I have heard all the learned counsel and perused the record as well as case-law relied upon by the parties. Perusal of the Jail Roll, reflects that appellant Ghulam Qadir son of Ahmed Bacho has undergone a sentence for 10 years, 9 months, 20 days and remission, earned is 9 years, 1 month, 9 days, whereas unexpired portion with compensation is 5 years, 4 months and 1 day. Similarly appellant/accused Ashiq Hussain son of Muhammad Ismail Awan has undergone sentence for 10 years, 9 months, 20- days and remission earned is 9 years, 6 days, whereas unexpired portion with compensation is 5 years, 5 months, 4 days. Resultantly the appellant/accused Ghulam Qadir has already undergone 19 years, 10 months, 29 days and the unexpired portion with compensation remission 5 years, 4 months, 1 day whereas appellant/ accused Ashiq Hussain has undergone 19 years, 9 months, 26 days whereas, unexpired portion with compensation is 5 years, 5 months, 4 days, which reflects that appellants/accused have already undergone the substantial portion of the sentence and both of them are behind the bars since 30-7-1999. It appears that the objection of the learned APG regarding application of Rule 217 of Jail Manual while deciding for granting bail to the applicant/accused during the pendency of the trial by suspending the conviction under section 426, Cr.P.C. Is misconceived as the same argument could be valid when the matter would have been finally decided by maintaining the conviction and acquitting the appellant/accused after reducing the sentence to one already undergone. Since the learned counsel for appellant/accused has only pressed application under section 426, Cr.P.C. Seeking bail to the appellant/ accused by suspending the sentence on the ground of hardship and of no possible likelihood of conclusion of the instant appeal in near future, which is pending before this Court since, 2004. The contention of the appellant for disposal of the instant application under the circumstances appears to be reasonable. Similarly, the objection of the counsel for complainant that since the Criminal. Acquittal Appeal of one of the co-accused is pending, hence the instant applicant cannot be decided on its own merits, besides being contrary to the fact, appears to be misconceived in view of the judgments of the Apex Court as well as of this Court relied upon by the counsel for the appellant. Similarly, reliance placed by the counsel for complainant in the case of Shahid v. The State reported as 2008 SCMR 1599 also appears to be misplaced as there this Court intend to make deeper appreciation of evidence nor the counsel for the appellant has sought suspension of the sentence on merits alone, on the other hand suspension of the sentence is sought on the ground of considerable delay in the trial and the hearing of the instant appeal and hardship as well as acquittal of one of the co-accused namely Muhammad Saleh, almost on the same set of allegations in the F.I.R. As well as evidence, by the learned trial. Court while extending benefit of doubt. Full Bench of the Hon'ble Apex Court in the case of Anwar-ulHague v. NAB PLD 2009 SC 388 has held that "appeal against conviction is pending for a long without any fault of the accused, the sentence has to be suspended." Similarly in the case of Amjad Hussain Gurchani v.
Sajjad Haider Khan 2004 SCMR 12 the Hon'ble Apex Court while granting leave to appeal in a case registered under section 302(b)/34 and section 7(1) of the Suppression of Terrorist Activities Special Courts Act 1975 has held that the "application of section 426, Cr.P.C., though excluded in the case of offences falls under Suppression of Terrorist Act 1975, could only be exercised in the cases of hardship, such as pendency of appeal of convict for a number of years either on account of delay tactics on the part of agencies or because of heavy work in the Court and also if accused suffering from illness nature detrimental to life." It was further held that reference to the merits of the case alone under the circumstances was not the requirement of the law. In the case of Makhdoom Javed Hashmi v. The State (2008 SCMR 165) the Full Bench of the Hon'ble Apex Court headed by the Hon'ble Chief Justice Iftikhar Muhammad Chaudhry while hearing Criminal Review Petition held as under:-- "The other argument of Mr. Arshad Ali Chaudhry, Advocate Supreme Court/Advocate-on-Record for the State that, in case of suspension of sentence, the object of filing the appeal would be defeated, is equally devoid of any substance. A convict who has already undergone almost half of his sentence may seek suspension of sentence in the interest of justice keeping in view the facts and circumstances of a particular case such as Adnan A. Khawaja (supra). It is also mentioned here that if ultimately the appeal of the petitioner is dismissed by the Appellate Court the provisions of subsection (3) of section 426, Cr.P.C. Would come in operation and the period of suspension of sentence shall stand excluded and he would have to undergo the sentence awarded to him by the Court."
6. In the instant case three accused persons namely Ghulam Qadir alias Azeem, Muhammad Saleh alias Ali Khan and Ashique Awan were nominated in the F.I.R. For having convicted under section 302, 34 P.P.C. The role assigned to all the three co-accused appears to be similar i.e, all the co- accused aimed with fire-arm fired at the deceased and caused death. It appears that on the same set of allegations and the similar role assigned to all the three accused persons, one of the co accused namely Muhammad Saleh has been acquitted by the learned trial Court by giving benefit of-doubt, whereas, the present appellants/accused have been convicted. Per learned counsel for cornplainant an Acquittal Appeal was filed in the matter of co-accused Muhammad Saleh which was duly dismissed on account of non-prosecution by Division Bench of this Court.
Restoration application was filed, however, for more than one year by now, neither such restoration application has been allowed nor the complainant has placed anything on record to show as to what efforts have been made to restore the acquittal appeal. Moreover, this Court during the course of hearing of the instant several adjournments to the counsel for the complainant to do the needful in this account, but no progress whatsoever has been shown in this regard by the counsel for complaint. Admittedly the appellants/accused are behind the bars since 1999 whereas, appeal is pending in this Court since 2004 and the matter could not proceed on account of heavy pendency of cases in this Court. The Jail Roll submitted by the Superintendent, Central Prison, Hyderabad dated 21-5-2010 reflects that the appellant/accused namely Ghulam Qadir son of Ahmed Bacho has undergone a sentence for 10 years 9 months 20 days and remission earned is 9 years 1 month 9 days, whereas unexpired portion with compensation is 5 years 4 months and 1 day.
Similarly appellant/accused Ashiq Hussain son of Muhammad Ismail Awan has undergone sentence for 10 years, 9 months, 20 days and remission earned is 9 years, 6 days, whereas unexpired portion with compensations 5 years, 5 months and 4 days. The learned counsel for the complainant and the learned APG could not bring anything on record to show that the delay in prosecuting the instant case and hearing of the instant appeal can be attributed to the appellants/accused. Moreover, the learned APG under the peculiar facts and circumstances of the case has frankly conceded to the grant of bail to the appellants/accused persons by suspending the conviction during pendency of instant appeal, whereas the counsel for complainant has been seeking adjournments on the ground that since Criminal Acquittal Appeal of one of the co- accused namely Muhammad Saleh was filed by the complainant, therefore, both the cases may be heard together, whereas record shows that such appeal was dismissed on account of non- prosecution on 3-12-2008 and the counsel for complainant has sought restoration of such dismissal order, which otherwise is pending for more than one year now.
7. Keeping in view hereinabove facts and peculiar circumstances of this case, I am of the view that the appellants/accused have made out a prima facie case of hardship and inordinate delay in disposal of the appeal due to heavy pendency in Court. Further, ground of acquittal of the co- accused who has been assigned almost the same role. On similar set of evidence also create doubts on prosecution case. Moreover, as per Jail Roll both the appellants/accused persons have already undergone substantial portion of sentence i.e, 10 years, 9 months and 20 days, whereas remission earned is 9 years, 1 month, 9 days and 9 years 6 days respectively. Accordingly the appellants/accused are admitted to bail by suspending conviction during the pendency of appeal subject to furnishing of surety in the sum of Rs,200,000 each with P.R. Bond in the like amount to the satisfaction of the Additional Registrar of this Court.
' The instant application stands disposed of in above terms.