Muhammed Azam Khan, C.J.--This appeal under Section 25 of the Islamic Penal Laws (Enforcement) Act, 1974, arises out of a judgment of the Shariat Court dated 27.8.2010 whereby an application for suspension of sentence and release on bail to the extent of appellant, herein, has been dismissed.
2. Necessary facts for disposal of appeal are that a case under Section 302/452,324/337-A,147/148, 149/337-H.2., APC, was registered against the appellant and others on 18.11.2002 at Police Station Kotli. The Challan was presented in the District Court of Criminal Jurisdiction Kotli. The file was subsequently transferred to the Additional District Criminal Court Sehensa camp Kotli. After necessary proceedings the trial Court convicted and sentenced Zia Akbar, appellant, to 14 years' rigorous imprisonment under Section 302, APC with a fine of Rs.200,000/- under Section 544-A, Cr.P.C., to be paid to legal heirs of the deceased. He was sentenced to Rs.10,000/- under Section 13/20/65 of the Arms Ordinance, while Imtiaz Akbar was sentenced to 10 years' under Section 302, APC. He was also ordered to pay the fine of Rs.50,000/- under Section 544-A to the legal heirs of the deceased. The other accused persons were also convicted to different periods of sentence. Zia Akbar, Imtiaz & Nayab, convicts, filed appeal against their conviction in the Shariat Court. Along with the appeal they filed application under Section 426, Cr.P.C. for suspension of sentence. The Shariat Court released Imtiaz Akbar & Nayab, accused, on bail while the bail application to the extent of Zia Akbar, present appellant, was dismissed.
3. Raja Inaamullah Khan, counsel for the convict-appellant, argued that the occurrence took place on 18.11.2002. The appellant is in continuous arrest for the last more than 10 years. The trial Court convicted him to 14 years and according to the calculation made by the jail authorities under the Prison Rules, he has already undergone a sentence of more than 10 years and only a sentence of 3 years and 6 . months is left. He argued that the judgment of the trial Court is not maintainable. In all, 15 persons were implicated in the case out of which 2 were given benefit of Section 169, Cr.P.C.
The remaining accused persons were challaned. The prosecution's case is full of contradictions.
The evidence consists of related and inimical witnesses and it is of doubtful character, which cannot be relied upon for convicting the accused. He argued that the allegation against the appellant is that he gave a dagger blow at the upper part of thigh to the deceased. Thigh is not a vital part of the body, therefore, there appears no intention to kill. He further argued that medical evidence is in conflict with oral evidence and when put in juxtaposition the case is full of doubts. It is a cardinal principle of law that benefit of doubt always goes to the accused. He referred to the Cases reported as Abdul Guftar & another us. The State & another [2007 SCR 524] and Muhammad Bilal us. The State & another [2008 SCR 100].
4. While controverting the arguments advanced on behalf of the convict-appellant, Sardar Ghulam Mustafa, advocate for the complainant, argued that fatal injury is attributed to the convict Zia Akbar and according to the medico-legal report the deceased died due to the injury attributed to the appellant. He argued that detailed and meticulous appreciation of evidence is not permissible at this stage. He referred to the cases reported as Bashir Ahmed vs. Zulfiqar & another [PLD 1992 SC 463], Farhat Azeem vs. Waheed Rasul & others [PLD 2000 SC 18] and Ch. Muhammad Riasat vs. Muhammad Asghar [PLD 2010 SC (AJ&K)29].
5. The learned Additional Advocate-General while arguing on behalf of the State, argued that after the trial the appellant has been proved guilty and the trial Court sentenced him to 14 years' imprisonment. The prosecution has filed revision for enhancement of sentence. The prosecution has proved the case against the appellant through cogent and reliable evidence and there is every likelihood that the sentence may be enhanced. He contended that the appellant is not entitled to the concession of bail at this stage.
6. We have heard the learned counsel for the parties and perused the record. It is an admitted position that the occurrence took place on 18.11.2002. The appellant was apprehended immediately and he remained in continuous arrest. The trial Court has convicted him to 14 years rigorous imprisonment under Section 302 APC while the other sentences were also awarded to him. The appellant has brought on the record a certification by the District Jail Kotli to the effect that he is confined in jail since 4.12.2002 and has been convicted by the Additional District Criminal Court Kotli under Section 302(C), APC, to 14 years' rigorous imprisonment and also under Section 544-A, Cr.P.C. and Section 13/20/65 of the Arms Ordinance. He has also been given the benefit of Section 382-B, Cr.P.C. It is further certified that after calculating the period of remissions his total imprisonment is left as 4 years and 7 months. This certification was issued on 21.9.2010, meaning thereby that a further period of an year and 1% month has elapsed and if the appellant has to undergo whole 14 years' imprisonment, then he has to serve another period of 3 years and 6 months imprisonment.
7. No doubt it is a settled law that the appellate Court has power to suspend the sentence and order for release of the convict on bail under Section 426, Cr.P.C., pending disposal of appeal but at the same time it is observed that after recording of conviction by the trial Court, the initial presumption of innocence in favour of accused is, not available to a convict person. It is enjoined upon the appellate Court to record the reasons for suspending the sentence and releasing the accused on bail. Although the provisions of Section 426, Cr.P.C. are not controlled by Sections 496 and 497 but the principle indicated therein will have to be borne in mind while granting or refusing bail. In the cases reported as Bashir Ahmed vs. Zulfiqar & another [PLD 1992 SC 463] it was observed as under:-- "There can be no cavil that the Appellate Court has power under 426, Cr.P.C.; to suspend the sentence and grant bail. Such power to grant bail is not fettered by the provisions of Sections 497 and 498, Cr.P.C. Reference can be made to The State v. Shehsawar 1969 SCM R 151. It was observed that the power under Section 426 of Cr.P.C, is not controlled by the provisions of Sections 496 and 497, Cr.P.C., although the principles therein indicated will have to be borne in mind in granting or refusing bail. In this, context, reference may, be made to Bahar Khan v. The State 1969 SCM R 81 where it was observed that "there is no force in the contention that the powers conferred on an Appellate Court under Section 426 to suspend sentence pending the hearing of an appeal are wider than the powers to release on bail under Sections 497 and 498 of the Code. A person accused of a non-bailable offence may not be released on bail if there appear reasonable grounds for believing that he has been guilty of an offence punishable with death or transportation for life." It was concluded that unless strong grounds are made to appear that conviction is not liable to be sustained, bail under Section 426 will not be granted. To the same effect are the observations in Abdullah Khan vs. Karamdad Khan 1968 SCM R 1064; Maqsood v. Ali Muhammad and another 1971 SCM R 657; Abdul Ghafoor v. Anwar-ul-Hassan etc. 1978 SCM R 149; Faqir Muhammad v. Akbar 1979 SCM R 270 and Haji Mir Aftab v. The State 1979 SCM R 320. The discretion has to be exercised judicially by considering the relevant facts without entering or commenting upon the merits of the case. If the contention raised, requires consideration of merits, the Appellate Court would refrain from entertaining such contentions. At this stage the Court cannot enter into a reappraisal of evidence which should be considered at the time of hearing of the appeal. Where on perusal of the facts and judgment impugned, the Court comes to the conclusion that the judgment suffers from any legal error, it would be justified to suspend the sentence and grant the bail."
In the case reported as Ch. Muhammad Riasat us. Muhammad Asghar [PLD 2010 SC (AJ&K) 29] it was observed as under-- "7. There is difference between the principles for grant or refusal of bail to a convict-person and a person who has not been convicted or is yet under trial. A presumption of innocence is in favour of a person who is facing the trial and not yet convicted by the trial Court. It is well settled principle of law that unless and until a person is not convicted, the presumption of innocence is in his favour.
The moment he is convicted by competent Court of law, then he loses the initial presumption of innocence in his favour. Thus a person, convicted in non-bailable offence by competent Court of law, will normally not be entitled to bail. This view finds support from case reported as Muhammad Murad vs. the State [1986 P.Cr.L.J. 64], which reads as under:-- "......It need not be stated here that the initial presumption of innocence in favour of an accused is substantially dislodged upon his conviction by a competent Court of law. Therefore, a person convicted of a non-bailable offence by the competent Court of law will not be entitled to be enlarged on bail normally."
In the aforesaid report it has been clearly laid down that a person, who is convicted, shall not normally be released on bail, unless and until some other extraordinary circumstances are found.
Some very strong grounds a required for the suspension of sentence. There must be strong and cogent reasoning through which it can be ascertained that the conviction will not sustain"
It was further observed at Page 86 of the same report as under:-- "10. It is pertinent to note that bail is a concession which is meant for those noble and respectable persons, who have been roped into a case falsely and the evidence against whom is not reliable and sufficient. In a case where the conviction has been recorded, the appellate Court should be more alert and cautious while suspending the sentence and allowing the concession of bail. It should not take it lightly and adopt it as a routine, otherwise it will be engender of encouragement to vandalism. If we allow such like concession without any solid and cogent reasoning, then the lachrymose maledictions of poor victims will ruin us."
In the case reported as Farhat Azeem us. Waheed Rasul & others [PLD 2000 SC 18] it was observed as under:-- "9. Now coming to the legal position in respect of suspension of sentence, we may refer to Bahar Khan vs. the State [1969 SCM R 81] wherein it was observed that "there is no force in the contention that the powers conferred on an Appellate Court under Section 426 to suspend sentence pending the hearing of an appeal are wider than the powers to release on bail under sections 497 and 498 of the Code. A person accused of a non-bailable offence may not be released on bail if there appear reasonable grounds for believing that he has been guilty of an offence punishable with death or transportation for life." It was concluded That unless strong grounds are made to appear that conviction is not liable to' be sustained, bail under Section 426 will not be granted. To the same effect are the. observations in Abdullah Khan vs. Karamdad Khan 1968 SCM R 1064; Maqsood Ali Muhammad and another 1971 SCM R 657; Abdul Ghafoor Anwar-ul-Hassan etc. 1978 SCM R 149; Faqir Muhammad v. Akbar 1979 SCM R 270 and Haji Mir Aftab v. The State 1979 SCM R 320.
The discretion has to be exercised judicially by considering the relevant facts without commenting on the merit of the case. If the contention raised, requires consideration of merits, the Appellate Court would refrain from entertaining such contentions. The Court cannot enter into reappraisal of evidence which should be considered at the time of hearing of the appeal but, where on perusal of the facts and judgment impugned, the Court comes to the conclusion that the judgment suffers from any legal error, it would be justified to suspend the sentence and grant the bail. In this regard the reasonable and legal views expressed by the trial Court should be given due consideration and weight, but every effort should be made to ensure that neither the evidence is reappraised nor the merits of the case are discussed....."
8. For deciding the present appeal, quantum of sentence is important. We shall not embark upon the merits and without reappraising the evidence the appeal can be disposed off on the ground of the quantum of sentence. The appellant was taken into custody soon after the occurrence on 18.11.2002 and he is continuously in jail from 4.12.2002. According to the Superintendent Jail he has already served a period of 10(1/2) years and if the sentence remains intact, then, too, he has to serve out only 3(1/2) years' imprisonment. While deciding, the applications for suspension of sentence the quantum of sentence and time likely to be consumed in decision of appeal have to be considered. This Court in the case reported as Muhammad Bilal vs. The State & another [2008 SCR 100] observed as under: "6. We have heard the learned counsel for the parties, perused the relevant record and have given our utmost muse to the respective arguments advanced by the learned counsel for the parties. It is pertinent to note that this Court shall not embark upon the merits of the case at this stage and shall not indulge into the meticulous appreciation, of evidence. While considering the application for suspension of sentence, the Court has to consider the quantum of sentence and time likely to be taken in the decision of appeal. The trial Court did not find the appellant guilty of murder. The trial Court held that the appellant was found physically present at the place of occurrence. It seems that the appreciation of evidence conducted by the trial Court and conviction recorded requires serious examination. Wherever the Court finds that the conviction recorded and the appreciation of evidence conducted by the trial Court requires serious examination, then the sentence is suspended by the Court and the applicants are released on bail....."
9. There is another aspect of the case. The appellant is attributed a dagger blow to the deceased Mehmood Ahmed while his brother Imtiaz Akbar, who is sentenced to 10 years' rigorous imprisonment, is attributed for giving a stick blow at the head of Mehmood, deceased. Apart from head, he has also given blow to the other parts of the body of the deceased. Both the brothers, who have been convicted; are attributed specific role; one of them was awarded 10 years' rigorous imprisonment while the appellant was refused bail on the ground that he has been convicted to 14 years rigorous imprisonment. After perusing the record and certification of jail authorities we have reached to the conclusion that only a period of 3(1/2) years is left, if the appellant serves out total period of 14 years rigorous imprisonment. He was entitled to same treatment which was meted out to the other convict Imtiaz because both were alleged to have given blows to the deceased.
10.In the instant case the rule of consistency is attracted. This Court in the case reported as Muhammad Ajmal vs. Muhammad Naeem & 3 others [2001 SCR 164], observed as under: "....We are of the considered opinion that the role attributed to the appellants Muhammad Siddique and Maqbool Hussain is similar and identical to the role attributed to Muhammad Waheed and Mehmood Hussain. Therefore, the case of appellants Muhammad Siddique and Maqbool Hussain is at par with the case of Muhammad Waheed and Mehmood Hussain. Thus, following the rule of consistency, the appellants Muhammad Siddique and Maqbool Hussain should not have been meted with discriminatory treatment. Thus, they are all entitled to the concession of bail."
Similarly in the case reported as Iftikhar Hussain vs. The State & another [2004 SCR 308] it was observed by this Court as under: "....It was also noticed that other accused persons attributed the same allegations were also granted bail as such the rule of consistency was also attracted. Taking into account the aforesaid facts and circumstances, we cannot differ with the findings recorded by the Courts below as those have been made after appreciating the facts and law."
In the case reported as Akhtar Hussain & another vs. The State & another [2010 SCR 455] it was observed by this Court as under:-- "......The case of Faisal Iqbal is at par with the case of Ansar Iqbal and Tariq Mehmood. No overt act is attributed to all the three accused towards the deceased and if the other two accused are released on bail, why the concession of bail may not be extended to the accused, Faisal Iqbal, who is facing similar allegations...."
The result of above discussion is that we accept the appeal and set aside the order passed by the Shariat Court to the extent of appellant. His sentence is suspended and he is ordered to be released on bail provided he furnishes a bail bond in the sum of Rs. 500,000/- (five lac rupees) with one surety and personal bond in the like amount to the satisfaction of any member of Tehsil Criminal Court Kotli. After furnishing the bail bond and personal bond he shall be released on bail, if not required in any other offence.