' AQEEL AHMED ABBASI, J.---Through instant application filed under section 426, Cr.P.C, the appellant seeks suspension of the sentence awarded by the learned 1st Additional Sessions Judge, Karachi South in Sessions Case No,370 of 2007, Crime No,160 of 2007 under section 320 Qisas and Diyat Ordinance, registered at Police Station Darakhshan, Karachi, vide judgment dated 7-2-2013 whereby appellant Ammar Farooq son of Muhammad Ahmed Qureshi has been convicted under section 265-H (H) Cr.P.C. And sentenced for committing an offence punishable under section 320, P.P.C. To undergo R.I. For 10 years and to pay Rs,7,00,000 as Diyat to the legal heirs of the deceased Mst. Nasreen. In case of non-payment of Diyat amount, the appellant is required to suffer one more year R.I., whereas benefit of section 382-B Cr.P.C. For the period he remained in Jail has also been extended.
2. It has been contended by the learned counsel for the appellant that instant appeal has been admitted to regular hearing vide order dated 20-2-2013, whereas neither the paper book has been prepared so far nor there is any possibility for hearing of instant appeal in near future looking to the backlog of regular hearing cases pending disposal before this Court. Per learned counsel, the alleged offence is compoundable and does not fall within the prohibitory clause, whereas there is no eyewitness of the alleged incidence except the complainant who is the husband of the deceased. Per learned counsel the prosecution/ complainant have miserably failed to prove the allegations with independent eye-witnesses or incriminating material, whereas the appellant was admittedly not arrested from the scene of the alleged incidence. Per learned counsel, none of the witnesses cited by the complainant has seen the alleged incidence nor implicated the appellant in the alleged offence, whereas, there is inordinate delay in registration of F.I.R. It is further contended that the present appellant was arrested subsequently at the potation of one Saeed Anwar, who was cited as witness, however, has not been examined by the prosecution/ complainant. Per learned counsel, even the impugned judgment suffers from several illegalities as neither the MLO report, showing the cause of death of the deceased, has been examined nor there has been any specific finding by the learned judge holding that appellant had caused the injuries to the deceased on account of negligent and rash driving which resulted in her death. Per learned counsel the appellant has strong prima facie case on merits, however, if he is kept behind the bars un-necessarily during hearing of the instant appeal, his entire career will be ruined. It is further contended that appellant remained on bail during trial, however, never misused the concession of bail. In support of his contention, learned counsel for the appellant has placed reliance on the following judgments:--
(1) Abdul Hameed v. Muhammad Abdullah and others 1999 SCM R 2589.
(2) Shafquat Mehmood v. The State 2007 PCr.LJ 1035.
(3) Muhammad Ali v. The State 2004 PCr.LJ 1444.
(4) Ahmed Khan v. The State 1997 M LD 1591.
3. Conversely, learned counsel for the complainant has opposed the release of the appellant on bail under section 426, Cr.P.C. By suspending sentence on the ground that the appellant has been convicted for 10 years under section 320, P.P.C., whereas the husband of the deceased, who is the eye-witness of the incidence has nominated the appellant. Per learned counsel. The parameters of grant of bail and suspension of the sentence under see :tion 426, Cr. PC are different, whereas the deeper appraisal of evidence is not permissible in the case of suspension of sentence under section 426, Cr.P.C. It has been prayed that the sentence of the appellant may not be suspended and he may not be released on bail. In support of his contention, learned counsel for the complainant has placed reliance on the following judgments.
(1) Farhat Azeem v. Waheed Rasul and others PLD 2000 SC 18
(2) Allah Ditta Khan v. The State PLD 2002 SC 845
(3) Muhammad Ashraf v. The State 1998 SCM R 80
(4) Michael Maseeh v. The State 1993 M LD 529
(5) Mahmood-ur-Rehman v. The State 1993 PCr.LJ 1729
4. Learned A.P.-G. Has also supported the case of the complainant, adopted the arguments of the learned counsel for the complainant and opposed the grant of bail to the appellant under section 426 Cr.P.C. By suspending the sentence.
5. I have heard the learned counsel for both the parties as well as learned APG and perused the record. From the perusal of the impugned judgment, it is noted that except complainant namely, Duran Khan Husband of deceased, no eye-witness of the alleged incidence has been examined, whereas none of prosecution witnesses has directly implicated the appellant with the alleged crime. Admittedly, the appellant was subsequently arrested on the pointation of one Saeed Anwer, who as per Statement of complainant, was captured from the place of incidence and was also shown as prosecution witness; however, he has not been examined. No MLO report showing nature of injuries and cause of death of the deceased appears to have been taken cognizance by the learned Judge, whereas the impugned judgment is also silent about the identification of the appellant holding that he was the same person who has hit the deceased by driving a motorcycle rash and negligently and caused the death of deceased. The reasons for conviction of the appellant as recorded by the learned judge are as follows:-- "The accused in his statement recorded under section 342, Cr.P.C. Has not alleged any enmity with complainant or police. No reason is given by the accused for his false implication in this case. The evidence available on record is sufficient to believe that the accused had committed the alleged offence by driving motor cycle rashly and negligently. I, therefore, answer point No,1 in affirmation."
6. Bare perusal of the above reasons as recorded by the learned trial Court, while convicting the appellant of having committed an offence under section 322, P.P.C. And awarding him maximum punishment of 10 years prima facie appears to be sketchy and unconvincing. Matter requires consideration and examination of the evidence which exercise cannot be undertaken at the time of hearing on application under section 426, Cr.P.C. This Court is cognizant of the fact that while hearing an application under section 426 Cr.P.C, seeking release of the appellant during pendency of the appeal by suspending the sentence, deeper appraisal of the evidence is to be avoided.
However, the apparent defects in the impugned judgment cannot be ignored. It will not be out of place to observe that Appellate Court's discretion to grant bail under section 426, Cr.P.C. Is not fettered or restricted by reference either to the conviction or to the sentence passed against the appellant by trial Court, but like all discretions vested in the Courts, the discretion has to be exercised judicially. Reference in this regard can be made to the case of Altaf Hussain Shah v. The State (1986 PCr.LJ 2202) and to the case of Abdul Ghaffar v. Anwar-ul-Hassan (1978 SCM R 149).
Similarly in the case of Abdullah Khan v. Karam Dad Khan and another 1986 SCMR 1064, the Hon'ble Supreme Court has held that section 426, Cr.P.C. Does not impose any limitation on the powers of the High Court to grant bail to an accused convicted even for the murder. In the case of Faqir Muhammad v. Akbar 1979 SCM R 270, the Hon'ble Supreme Court refused to interfere with the order of the High Court suspending sentence of a convict sentenced to imprisonment for life on the ground that plea of self-defence needed examination. Further reference in this regard can also be made to the case of Haji Mir Aftab v. The State 1979 SCM R 320, Maqsood v. Ali Muhammad and another 1971 SCM R 657, Hazrat Ullah v. The State 1979 PCr.LJ 1104, Maqsood Ahmed v. State 2005 YLR 1049.
7. Keeping in view the ratio of the judgments of the Hon'ble Supreme Court as referred hereinabove, and the defects as noted in the impugned judgment, I am persuaded to suspend the sentence awarded by the learned trial Court to the appellant during pendency of the appeal and enlarge him on bail subject to his furnishing solvent surety in the sum of Rs,2,00,000 and P.R. Bond in the like amount to the satisfaction of the Nazir of this Court. It is clarified that the observations made hereinabove are tentative in nature, whereas the appeal shall be decided on its own merits and on the basis of evidence available on record.