' MUHAMMAD ALI MAZHAR, J.---The appellants have moved this application (M.A. No,7195 of 2011), under section 426, Cr.P.C. For suspension of their sentence. During trial, all three appellants were on bail, however, vide judgment dated 14-12-2009, the appellants were sentenced to suffer R.I. For life and directed to pay compensation in the sum of Rs,100,000 each to the heirs of the deceased.
2. Concisely, the facts of the prosecution case are that complainant Chakar Chachar lodged the F.I.R. No,16 of 2003 at Police Station, Rohri, under sections 302, 114, 34 P.P.C., on 20-2-2003, in which he stated that Shah Nawaz Chachar promised to get her daughter married with Inayat Hussain, subsequently, he resiled, upon which, Inayat Hussain and Mst. Samia both solemnized their marriage. Crime No, 91/2002 was registered at P.S. Dubar, but the same was disposed of under C.- Class. Mst. Samia subsequently got shelter in the Darul Aman. On 20-2-2003, when the complainant, his brother Inayat Hussain, uncle Muhammad Bux and relative Ghulam Mustafa were returning back to their village, they were stopped at Cement Factory, the accused Sachal, Shah Nawaz and Gulsher armed with TT pistols . Arrived there on motorcycle. Accused Shah Nawaz called upon Inayat Hussain that he will not be spared and he asked the remaining accused to catch hold of Inayat Hussain, on which, accused Sachal and Ghulsher made direct firing on Inayat Hussain and he died on the spot.
3. The learned counsel for the appellants argued that the appellants are innocent and they have been falsely dragged into a false case. The evidence available on record clearly shows that the complainant himself not supported the prosecution case. He further argued that P.W. Muhammad Bux was shown eye-witness, but he is real maternal uncle of the deceased as well as. Complainant hence he Was an interested witness. The learned counsel further argued that complainant himself appeared in this court and conceded to that he will have no objection if the appeal is allowed and the conviction is set aside. It was further averred that even in the trial Court, the complainant had filed a statement which was not taken into consideration and the appellants were convicted for life imprisonment. The most crucial arguments of the learned counsel for the appellants was that this appeal was admitted to regular hearing on 23-12-2009 and since then it is pending while the appellants during trial were on bail, but their bail bonds were cancelled and they were taken into custody on the date of judgment and for last more than two years, this appeal is pending. The learned counsel further submitted that in view of the amendment made under section 426, Cr.P.C.
The appellants are entitled to be released on bail as their appeal has not been decided within the statutory period of two years and no delay has been caused by the appellants. The learned counsel invited my attention to a statement dated 29-9-2011, along with which he has also submitted a copy of statement submitted by the complainant in the trial Court which shows that on 17-11-2009, he stated that appellants Gulsher and Muhammad Sachal are innocent. However, learned trial Court on his statement passed order that evidence was recorded so many years ago and law does not permit such an application at the stage of judgment. Now in this court also complainant has filed affidavit in which it is stated that he took out search of real culprits and found all the appellants innocent.. He further stated that he has no objection if appeal is allowed and the appellants are released.
4. The learned A.P.-G. For the State argued that the appellant Gulsher was arrested on 26-5-2003 and appellants Sachal and Shah Nawaz were arrested on 13-5-2003. He further argued that delay in appeal was caused by the appellants as they are not serious to proceed the appeal. The appeal was fixed on so many dates but for one or the other reasons, it was adjourned and mostly the adjournments were sought by the appellant's counsel. He vehemently opposed the reliance on affidavit of complainant on the ground that it was the same complainant who implicated the present appellants and now he has filed affidavit in support of appellants, therefore, he is liable to be tried either for filing false complaint or false affidavit in this court. He further argued that sufficient evidence is available on the record which justifies the conviction of the appellants. It is repeatedly held by the honorable Supreme Court that in murder cases conviction can be awarded even on the testimony of a single witness if inspiring-confidence.
5. Heard the arguments of learned counsel. So far as the filing of affidavit by the complainant in this court exonerating the appellants or his earlier statement filed in the trial Court is concerned, at this stage, I would not like to touch this issue. If the parties have patched up the matter and are ready to compound the offence then of course, the proper procedure has already been laid down under section 345, Cr.P.C. However, at this stage after conviction which is based on evidence, affidavit of complainant has little value specially in the circumstances when the same complainant lodged the F.I.R. And fight the case vigorously and after awarding conviction now he is taking up a plea that he made out the search and on his own investigation in the matter, he found the appellants innocent. If the complainant and legal heirs of deceased and the appellants want to enter into compromise for compounding the offence, they may move appropriate application. The affidavit of complainant filed in this court at the best can only be considered as no objection to the grant of bail and nothing else.
6. The next question which requires the court's attention is the ground of statutory delay. This appeal was admitted for regular hearing on 23-12-2009 and the file shows that since 2-4-2010, it could not be heard at least for 34 dates on which board was discharged. The order sheet dated 9- 12-2010 shows that matter was fixed for regular hearing of appeal but it was adjourned due to non- availability of R&P and paper book. On 28-12-2010, counsel for the appellants moved urgent application and court fixed the appeal for regular hearing on 30-12-2010. Order sheet dated 30-12- 2010 shows that the court directed the office to fix appeal for regular hearing after winter vacation on 11-1-2011, but again it was discharged and then on 18-11-2011 another urgent application was moved by the counsel for appellants which was allowed and the matter was ordered to be fixed for regular hearing on 24-1-2011, On 24-1-2011, again board was discharged. On 18-2-2011, matter was fixed but since court time was over, it was adjourned to 28-2-2011, on which date also board was discharged. Thereafter, appeal was fixed on 21-3-2011 but court adjourned the appeal for 28-3-2011 to be taken up at 11-00 a.m. And P.O. Was also issued. However, on 11-4-2011, matter was adjourned on the request of appellants and again on 18-4-2011, it was adjourned by consent. On 2-5-2011, again, the appeal was adjourned by consent. Thereafter, the order sheet shows that on three occasions, appellants' counsel moved urgent applications for fixation of case. On two or three dates, again the appeal was adjourned for want of time, thereafter, few dates were sought by the appellant's counsel on the ground he wants to file affidavit and statement of complainant in this court to show that he has exonerated the appellants. On two dates, learned A.P.-G. Sought time. On 6-2-2012, learned A.P.-G. Requested for adjournment to verify the conduct of the appellants from the jail authorities and during course of arguments on this application, he submitted that there is no complaint against the appellants, their conduct is satisfactory in the jail and nothing was produced by him to show that the appellants are hardened and desperate criminals which disentitled them to claim any concession of bail on the ground of statutory delay.
7. After considering all the previous order sheets, it is apparent on the face of record that since the date of admission of appeal, the matter is being adjourned for various reasons including the reason for want of time, board discharged or on request of appellants or the prosecution and after considering the all-encompassing cause of delay, I am of the view that the entire delay cannot be attributed to the appellants but there are various reasons for which, the appellants alone cannot be held responsible.
7A. The ground of statutory delay and the suspension of sentence under section 426, Cr.P.C. Was dealt with by me in detail in a case of Ghulam Mustafa v. The State (PLD 2011 Karachi 394), as under:-- "7. Before the suspension of sentence and 'to grant bail, the legislature has imposed an obligation and responsibility upon the court to first ascertain and examine the cause of delay. A convicted person may be released by the court on bail, 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 applicant or any other person on his behalf. This statutory right is subject to the fulfilment of the criteria and decisive factor prescribed under clauses (a) to (c) of subsection (1A) of section 426, Cr.P.C. Which is germane to the particular period of sentence and time specified for decision of appeal in which it has not been decided by the court. According to the conditions laid down in the proviso, it is also to be examined, essentially whether the person applied for bail is not previously convicted offender for an offence punishable with death or imprisonment for life or a person who in the opinion of appellate court is hardened desperate or dangerous criminal or is accused of an act of terrorism punishable with death or imprisonment for life.
8. It is not mandatory, obligatory and bounden duty of the High Court to have examined the case on merits and should have dilated upon the contentions as agitated in depth while deciding application under section 426, Cr.P.C. For the simple reason that appraisal of evidence in depth is neither warranted nor desirable while, dilating upon and deciding such application. A Court should confine itself to the judgment assailed before it. A thorough scrutiny of evidence and its evaluation should be made while adjudicating upon the appeal as it would be opportune moment for doing so and not while deciding the application moved under section 426, Cr.P.C. As it would be a premature stage. A conviction cannot be set aside while exercising jurisdiction as conferred under section 426, Cr.P.C. On the grounds with reference to evidence and merits of the case which certainly require a thorough probe and deeper scrutiny of evidence which should be avoided. The discretion has to be exercised judiciously by considering the relevant facts without entering into 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. Reference can be made to PLD 2002 Supreme Court 845, (Allanditta Khan v. The State)."
8. For the foregoing reasons, MA No, 7195 of 2011 is allowed. The sentence of the appellants is suspended and they are granted bail subject to furnishing solvent surety in the sum of Rs,300,000 (Rupees three lacs only) each with PR bond in the like amount to the satisfaction, of Additional Registrar of this Court.