1. ' MUHAMMAD TASNIM, J.---This is an application under section 426, Cr.P.C., praying therein to suspend the sentence under section 426, Cr.P.C. And release the appellant on bail during pendency of instant appeal on the ground that appellant is in custody continuously for about 31 months. It is stated in the application that appellant was arrested on 21-2-2009 and he faced the trial for seven months and convicted vide judgment dated 15-9-2009 whereby appellant was convicted and sentenced as under:-- "To undergo rigorous imprisonment for 10 years and to pay the fine Rs,25,000 (Rupees Twenty Five Thousand only) for committing offence punishable under sections 392, 34 P. P. C. In case the accused/appellant did not pay the amount then to suffer S.I. For more three months. Accused/ appellant was also convicted under section 448, P.P.C. And sentenced to suffer' R.I for one year.
2. Both sentences were ordered to run concurrently. Benefit of section 382-B, Cr. P. C. Was also awarded to accused/ appellant."
3. ' Learned counsel for the appellant has submitted that provisions of section 426, Cr.P.C. Have been amended on 1st April, 2011 whereby 426(1-A) has been added to the Code of Criminal Procedure by Code of Criminal Procedure (Amendment) Act, 2011, whereby provisions have been made for the convicts, who have been sentenced 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 provided that the Appellate Court is of the opinion that appellant is not hardened, desperate or dangerous criminal or is accused of an act of terrorism punishable with death or imprisonment for life. Learned counsel for the appellant further submitted that in all the present applicant remained in custody for about 31 months, whereas two years statutory period have lapsed after passing of conviction order, but appeal of the appellant has not been disposed of. He further submitted except one date of hearing i,e, 30-11-2010 when parties' counsel were ordered to come prepared no other adjournment has been taken. Learned counsel further submitted that impugned judgment was passed against the appellant Tariq son of Abdul Sattar on 15-9-2009 and present appeal was filed on 29-9-2009. Learned counsel further submitted that neither present appellant is previous convict nor he is hardened, desperate or dangerous criminal or is accused of an act of terrorism punishable with death or imprisonment for life and he claims benefit of newly-added provision of section 426, Cr.P.C. He further submitted that case of the appellant squarely falls within the newly added provisions of section 44, Cr.p.c. Learned counsel for the appellant further submitted that appellant has been convicted for the first time. The prosecution was directed to file a statement as to whether appellant is hardened or desperate criminal but no such Statement appears to have been filed by the learned A.P.-G. In the circumstances, learned counsel submitted that delay in disposal of the appeal is not attributable to the present appellant. He further submitted that case of the appellant is fully covered under the provisions of law mentioned hereinabove and he is entitled to be released on bail during the pendency of this appeal. It has been stated by the learned counsel for the appellant that the present appellant was not previously convicted offender for an offence punishable with death or imprisonment for life or he is hardened, desperate or dangerous criminal or is accused of an act of terrorism punishable with death or imprisonment for life. Hence, he be released on bail.
4. ' On the other hand, learned A.P.-G. Has not opposed the application due to the statutory provisions under which the present application has been made and he admitted that more than 31 months have passed but appeal has not been heard and decided. However, he says that appeal may be heard at an early date. Learned counsel for the appellant also requested that this appeal may be heard at an early date.
5. ' I have heard the learned counsel for the parties and perused the record.
6. ' To appreciate the contention of they learned counsel for the appellant it will be advantageous to quote the provisions of section 426(1-A) of Code of Criminal Procedure (Amendment) Act, 2011, dated 21-4-2011 which is reproduced hereunder:-- "(1A) An Appellate Court shall, except where it is of the opinion that the delay in the decision of appeal has been occasioned by an act or omission of the appellant or any other person acting on his behalf, order a convicted person to be released on bail who has been sentenced-- (a)
7. (b)
(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: ' Provided that the provisions of the foregoing paragraphs shall not apply to a previously convicted offender for an offence punishable with death or imprisonment for life or to a person who, in the opinion of the Appellate Court, is a hardened desperate or dangerous criminal or is accused of an act of terrorism punishable with death or imprisonment for, life. "
8. ' From the perusal of record, it appears that impugned judgment passed on 15-9-2009. Present appeal was filed on 29-9-2009 and admitted to regular hearing, whereafter case was taken up in Court on 3-2-2010 on which date order for issuance of Production Order was passed. The appellant, according to learned- counsel for the appellant, remained in custody for about 31 months, whereas two years statutory period have lapsed after passing of conviction order, but appeal of the appellant has not been disposed of. It is admitted position that except one date of hearing i,e, 30- 11-2010 when parties' counsel were ordered to come prepared no other adjournment has been taken during the pendency of appeal. In this way delay in disposal of present appeal is not attributable to the present appellant. Since appellant is not previously convicted offender for an offence punishable with death or imprisonment for life or a hardened, desperate or dangerous criminal or is accused of an act of terrorism punishable with death or imprisonment for life his case squarely falls within the provisions of amended section 426(1A), Cr.P.C. And the present appellant appear to be entitled for the relief as provided under the relevant law. In the circumstances, the impugned judgment dated 15-9-2009 passed in Sessions Case No, 411 of 2007 in Criminal No, 208 of 2007 registered under sections 392, 448, 511, 337-H, P.P.C. P.S. Mehmoodabad is hereby suspended and appellant/accused Tariq son of Abdul Sattar is ordered to be released on bail on his furnishing solvent surety in the sum of Rs,1,00,000 (Rupees One Lac) with P.R. Bond in the like amount to the satisfaction of Nazir of this Court.