' SH. AHMAD FAROOQ, J.---The petitioners, on being tried along with thirty-one (31) co-accused, by the learned Sessions Judge/Special Judge, Anti-Terrorism, Sargodha, Camp at Faisalabad, in a case arising out of F.I.R. No, 757, dated 19-8-2010, registered in Police Station, Kotwali, District Jhang, under sections 148/149/427/324 and 337-D, P.P.C. Read with section 7 of the Anti-Terrorism Act, 1997 were found guilty and vide judgment dated 22-11-2010, have been convicted and sentenced as under:-- ' Under section 148, P.P.C. : Two years' R.I. Each.
' Under sections 337-F(iii)/149,,P.P.C.: ' One year R.I. Each as `ta'zir'on account of causing Jurh Ghayr Jaifah Mutalahimah to Ali Raza along with payment of Rs,2,000 each as `daman'.
' Under section 427/149 P.P.C.: ' Six months' R.I. Each, for damaging vehicle No,2700-JA in the occurrence.
' All the co-accused, 31 in number, have been given the benefit of doubt and they have been acquitted from the charge by the learned trial Court. The convicts/petitioners have assailed their conviction and sentence by filing Criminal Appeal No,1865 of 2011, which is pending adjudication before this Court. During the pendency of their appeal, the petitioners have filed the instant constitutional petition for seeking their release on bail by way of suspension of the operation of the impugned judgment.
2. The learned counsel for the petitioners has argued that at the conclusion of the trial, the learned trial Court has not found any of the convict/petitioners guilty of any offence attracting the provisions of the Anti-Terrorism Act, 1997 and they have been convicted and sentenced for such offences, which are not scheduled offences. On the strength of the above argument, the learned counsel has contended that the impugned judgment, on the face of it, suffers from legal infirmity as being coram non judice and without jurisdiction, entitling the present petitioners to the suspension of their sentence, as there exist strong reasons to presume that the impugned judgment would be set aside by this Court at the time of decision of the appeal of the present petitioners. Reliance in this regard has been placed on the case of Muhammad Bilal alias Suleman v. Federation of Pakistan (2011 PCr.LJ 411) and Allah Ditta Khan v. The State (PLD 2002 SC 845). He further contended that the recovery of the alleged weapons of offence is immaterial as the prosecution has failed to get them matched with the recovered empties apart from the fact that the same are licensed ones. The learned counsel for the petitioners next contended that notwithstanding the ground of the impugned judgment being not sustainable in the eye of law, the petitioners are also entitled to the suspension of their sentence, on the ground of it being short in nature. In support of this contention, he has referred to the cases of Nazeer Ali alias Nazeer v. The State (2011 YLR 403), Ghulam Murtaza and another v. The State (2007 YLR 1293), Abdul Hameed v.
Muhammad Abdullah and others (1999 SCMR 2589) and Ishtiaq Hussain and another v. The State (1995 MLD 1450).
3. Conversely, the learned counsel for the complainant contended that the instant petition is not maintainable as section 25(8) of the Anti-Terrorism Act, 1997 provides a bar against suspension of the sentence during the pendency of the appeal. He has further contended that the learned trial Court despite having found the convict/present petitioners guilty of the offences charged against them, has illegally and unlawfully not awarded them punishment under section 7 of the Anti- Terrorism Act, 1997. He submitted that the complainant has filed criminal revision for enhancement of the sentence of the present petitioners, which is pending before this Court. He further submitted that as there are bright chances of enhancement of the sentence of the present petitioners in the revision petition, they are not entitled to suspension of their sentence. Finally, he submitted that the petitioners are not entitled to bail as the impugned judgment has been passed recently and till date, they have undergone only few days of their sentence of imprisonment.
4. The learned D.P.-G. Has also opposed the instant petition by adopting the arguments addressed by the learned counsel for the complainant.
5. In rebuttal to the arguments advanced by the learned counsel for the complainant, the learned counsel for the petitioners has added that the instant petition is maintainable and this Court has vast powers to suspend the impugned judgment in the exercise of its constitutional jurisdiction. In this respect he has cited the case of Allah Din and others v. Special Judge, Anti-Terrorism Court No,!, Lahore and others (PLD 2008 Lahore 74). He has also relied upon the case of Muhammad Latif and 2 others v. The State (PLD 1996 Lahore 196), to contend that even issuance of notice for enhancement is no ground to refuse suspension of the sentence. In reply to the argument that the impugned judgment has been passed recently, the learned counsel has brought on record attested copies of orders dated 17-10-2011 and 3-10-2011, passed in Writ Petition No,22040 of 2011 and Writ Petition No,21176 of 2011, respectively, to show that the sentences of the petitioners in the said writ petitions were suspended just after few days of their convictions.
6. Arguments heard. Record perused.
7. In the case of Allah Din and others v. Special Judge, Anti-Terrorism Court No,1, Lahore and others (supra) it has been held by a Division Bench of this Court that in spite of the bar under section 25(8) of the Anti-Terrorism Act, 1997 qua the release of a convict on bail during the pendency of his appeal, High Court is not deprived of the authority/jurisdiction to grant said relief under extraordinary constitutional jurisdiction. We, therefore, find no force in the argument of the learned counsel for the complainant regarding non-maintainability of the instant petition. A perusal of the impugned judgment would reveal that at the conclusion of the trial, not only 31 co-accused have been acquitted from the charge but also the present petitioners have been convicted and sentenced for the offences, which do not fall within the category of scheduled offences, punishable under any provision of the Anti-Terrorism Act, 1997. In view of the dictum laid down in the case Muhammad Bilal alias Suleman v. Federation of Pakistan (supra), jurisdiction of the learned trial Court as well as the legality of the impugned judgment qua the conviction of the present petitioners has become an arguable point, resolution of which would certainly require reappraisal of the evidence on the record. Even otherwise, the sentence of 2 years' R.I. Is short and there is no prospect of the appeal of the present petitioners being heard in the near future, in routine. In case, the petitioners are not released on bail during the pendency of their appeal, there is every apprehension that before the decision of their appeal, they would have undergone their entire sentence. Furthermore, it would certainly be impossible to compensate the petitioners for their illegal detention in jail if ultimately they are acquitted in their appeal, after having served out their entire sentence. On the contrary, in case of their release during the pendency of their appeal, the position would be different because in the event of dismissal of their appeals by this Court, they could be re-arrested for undergoing their remaining sentence. No doubt, the petitioners have been convicted and sentenced recently and they have undergone only a few days of their sentence, but in view of the fact that their sentence is very short and they have successfully made out a case for suspension of their sentence, the question of length of sentence undergone by them has become immaterial. In these circumstances, coupled with the principle of safe administration of justice, it seems appropriate to order the release of the petitioners by way of suspension of their sentence.
8. As a necessary corollary of the above discussion, we are inclined to accept the instant petition.
Accordingly, the sentence of the petitioners is suspended and they are directed to be released on bail subject to their furnishing bail bonds in the sum of Rs,200,000 each, with two sureties, each in the like amount, to the satisfaction of the Deputy Registrar (Jud.) of this Court.