MUHAMMAD ANWAARUL HAQ, J.---Through this petition, petitioner Zafar Iqbal alias Malanga seeks suspension of his sentence, who has been convicted and sentenced by the learned trial court as under:-- "Diyat under section 319, P.P.C. and in addition to 'Diyat' five years R.I. as 'Tazir'. He was ordered to remain in jail till realization of the 'Diyat' and also to serve out the punishment as 'Tazir'. It was further ordered that the 'Diyat' if realized shall be paid to the legal heirs of the deceased in accordance with law. Benefit of section 382-B Cr.P.C. has been given to the convict/petitioner."
2. Learned counsel for the petitioner, in support of this petition, contends that offence under section 319, P.P.C. is a bailable offence and that as per the rule laid down in the judgments reported as Hata and others v. The State (PLD 1967 Lahore 1302), Safdar Ali Shah v. The State 1997 MLD 961), Ghulam Sarwar v. The State (2003 PCr.LJ 1714) and Masood Khan v. The State (PLD 2004 Karachi 386), propriety demands that till the decision of criminal appeal, petitioner may be released on bail while suspending his sentence.
3. On the other hand, learned Deputy Prosecutor-General assisted by learned counsel for the complainant opposes this petition by contending that in fact it is a murder case and charge against the petitioner was also framed under section 302, P.P.C.; that finding of the learned trial court that the case does not fall within the purview of section 302, P.P.C. is erroneous and that appeal against acquittal of the petitioner under section 302, P.P.C. has already been filed, which is pending before this Court.
4. Heard. Record perused.
5. Be that as it may, the offence under section 319, P.P.C. under which the conviction and sentence of the petitioner has been recorded by the learned trial court is a bailable, offence. It is by now well settled that in such like cases after admission of appeal for regular hearing, the accused is entitled to bail as a matter of right. In this context, I respectfully refer the judgment reported as Hata and others v. The State (PLD 1967 Lahore 1302), wherein it has been held as under:-- "(5) It must also be remembered that an appeal is not a new trial but is a continuation of the trial already held or a part of the trial of an offence undertaken by the Court of the first instance. Hence an appellate Court has power to pass such order or inflict a sentence which was within the power of the original Court who tried the case. As such the provisions as contained in section 496, Cr .P .C. Code, shall apply to the case of a person convicted of a bailable offence.
(6) For these reasons, I hold that a person convicted of a bailable offence and who has filed an appeal against the conviction and sentence, is entitled to bail as a matter of right."
This principle has also been adopted in numerous cases thereafter such as Safdar Ali Shah v. The State (1997 MLD 961), Abdul Samad v. The State (1999 SD 432), Ghulam Sarwar v. The State (2003 PCr.LJ 1714) and Muhammad Qasim v. The State (2005 YLR 1048). The question as to whether case of the petitioner falls within the purview of section 302, P.P.C. or it does fall under section 319, P.P.C. needs reappraisal of evidence which is only possible at the time of final hearing of the appeal, and there is no hope for early fixation of the same in the near future.
6. In view of all above, without commenting upon the merits of the case, this petition is allowed and sentence of the petitioner is suspended till the final disposal of his criminal appeal, subject to his furnishing bail bonds in they sum of 200,000 (Rupees two hundred thousand only) with two sureties each in the like amount to the satisfaction of the Deputy Registrar (Judicial) of this Court. However, the petitioner shall remain present before this Court on each and every date of hearing fixed in the main appeal.