RAJA SAEED AKRAM KHAN, J. -- This Criminal appeal has been directed against the order dated 29.9.2011 passed by a Division Bench of the Shariat Court of Azad Jammu and Kashmir, Camp Mirpur, through which the convict-respondent has been ordered to be released on bail.
2. The summary of the facts giving rise to this appeal is that the convict-respondent was sentenced and awarded life imprisonment under Section 302(b), A.P.C. for the murder of one by the Additional District Court of Criminal jurisdiction, Dadyal vide judgment dated 30.11.2007. The convict-respondent was also awarded three years' rigorous imprisonment under Section 13 of the Arms Ordinance, 1965. The judgment of the Additional District Criminal Court, Dadyal, was assailed by way of an appeal before the Shariat Court on 6.12.2007 which is still pending for disposal. During the pendency of appeal the convict-respondent moved an application under Section 426, Cr.P.C, for the suspension of the sentence and release on bail on the statutory ground that as a period of more than two years had elapsed but his appeal was not fixed for hearing. The Division Bench of the Shariat Court, after hearing the parties, accepted the application vide order dated 29.9.2011 and while suspending the sentence, ordered to release the convict-respondent on bail. This order of the Shariat Court has been impugned before this Court.
3. Ch. Masud Khalid, Advocate, the learned counsel for the complainant-appellant, has argued that the order of the Shariat Court is against law and facts of the case. He argued that a poor labourer was murdered just to snatch his car. He urged that the deceased was brutally murdered and this aspect of the case has not been taken into consideration while suspending the sentence awarded to the convict-respondent. He contended that the convict- respondent has played a vital role in the commission of offence who was armed with pistol and inflicted fire-arm injury to the deceased.
He further submitted that the convict- respondent fully participated in the occurrence alongwith the co-accused who has been awarded death penalty but the Shariat Court has totally overlooked this aspect of the case while releasing the convict-respondent on bail. The Shariat Court also erred in law while not taking into consideration the fact that the convict-respondent, while committing the offence, has acted in a desperate manner which is one of the grounds for refusal of bail on the statutory ground even if the statutory period fixed under Section 426, Cr.P.C, for hearing an appeal has elapsed. He lastly submitted that the provisions of sub-section (1-A)(c) of Section 426, Cr.P.C, are not mandatory in nature and it was the duty of the Court to keep in its mind the other facts while releasing such a hardened and criminal person on bail whose case is fully covered by the prohibitary clause of Section 497, Cr.P.C, as the delay in hearing the appeal was not caused due to negligence of the complainant.
4. Conversely, Ch. Muhammad Mehfooz, Advocate, the learned counsel for the convict-respondent, has strongly controveted the arguments advanced by the learned counsel for the appellant while arguing that the Shariat Court has rightly exercised the direction while suspending the sentence awarded to the convict-respondent under Section 426, Cr.P.C, as a period of more than two years had passed but the appeal was not fixed for hearing. He urged that the statutory right had accrued in favour of the convict-respondent which cannot be denied without assigning any cogent reason.
As the accused is not a hardened and criminal person, therefore, the Appellate Court has rightly exercised its discretion while releasing the convict-respondent on bail. Admittedly, he was not convicted previously. He further argued that originally in the F.I.R., the convict-respondent was not nominated. During the investigation, he was implicated in the case with the allegation that at the time of occurrence, he was armed with a pistol and he inflicted a fire-arm injury to the deceased.
He lastly argued that the merits of the case cannot be discussed while deciding a case under Section 426, Cr.P.C.
5. Mr. Muzaffar Ali Zafar, the learned Additional Advocate-General, has opted to adopt the arguments advanced by the learned counsel for the appellant.
6. We have considered the arguments advanced by the learned counsel for the parties, perused the record made available land and the impugned order passed by the Shariat Court, In the F.I.R., the convict-respondent was not nominated, however, during the investigation, he was arrested and attributed the role that he, being armed with a pistol, inflicted a bullet injury to the deceased.
The pistol was presented by the convict-respondent to the Police alongwith four live cartridges.
After completion of the investigation, a challan was presented before the Additional District Criminal Court, Dadyal and the Trial Court, vide its judgment dated awarded the sentence of life imprisonment to the convict-respondent. An appeal, as said earlier, against the aforesaid judgment of the Additional District Criminal Court is still pending before the Shariat Court for the last more than three years.
7. Section 426(1-A), Cr.P.C, was added to Code of Criminal Procedure, 1898 through the Law Reforms Ordinance, 1972. Prior to the addition of sub-section (1-A) to Section 426, Cr.P.C., the Appellate Court was empowered to suspend the execution of the sentence or release a convicted person on bail after recording reasons in writing. However,. no statutory period was fixed as to when the Appellate Court could exercise this power while suspending the execution of sentence or releasing a convicted person on bail, ln this background, sub-section (1-A) was added through Law Reforms Ordinance, 1972 in which three categories have been mentioned and a period has been fixed to meet different situations. For better appreciation, we would like to examine Section 426, Cr.P.C, which speaks as under:-- Suspension of sentence pending appeal, release of appellant on bail.-(1) Pending any appeal by a convicted person, the Appellate Court may for reasons to be recorded by it in writing, order that the execution of the sentence or order appealed against be suspended and, also, if he is in confinement, that he be releasled on bail or on his own bond.
(1-A) 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) imprisonment for a period not exceeding three years and whose appeal has not been decided within a period of six months of his conviction.
(b) imprisonment for a period exceeding three years but not exceeding seven years and whose appeal has not been decided within a period of one year of his conviction; or
(c) 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.
(2)..............................
(2-A) .......................
(2-B) .........................
(3).........................
After going through the above-said provisions, it can safely be said that until anything is brought on record to the contrary, the benefit of sub-section (1-A)(c) cannot be withheld from a convicted person whose appeal has not been heard according to the classifications given in clauses (a) (b) and (c) of sub-section (1-A) of Section 426, Cr.P.C. The record reveals that the appeal of the convict-respondent has not been decided within a period of two years, therefore, he earned a right to move the Appellate Court for the suspension of his sentence. However, this right is not absolute and mandatory in nature, in the appropriate cases, if the Appellate Court comes to the conclusion that the person who is seeking bail under the above-said provisions is a hardened, desperate or dangerous criminal and has acted in the desperate manner that can be refused.
8. The learned counsel for the appellant has heavily relied upon a judgment of this Court titled Shaukat Ali v. The State and another [Criminal Appeal No, 7 of 2012 decided on 7.8.2012]. We have thoroughly examined the supra judgment and observe that the facts of the case in hand rate different and distinguishable from the case referred to and relied by the learned counsel for the appellant, in the referred case, the accused had acted in a desperate manner in the result of which three innocent persons were murdered on spot. We have observed earlier that despite the fact that even if the statutory period has elapsed? the convict-respondent cannot claim the bail as a matter of right. Each criminal case has to be decided on its peculiar facts, In the case in hand, it is not denied by the other side that the statutory period of two years had completed and it is also reflected from the order of the Shariat Court that there is no possibility of the fixation of appeal for hearing in near future. When there is no attribution to the convict-respondent for the delay in fixation of the appeal, he cannot be deprived of the benefit accrued to him under the statutory provisions.
9. The learned counsel for the appellant has strongly argued that the role of the convict- respondent was at par with the co-accused who was awarded death penalty as both have acted in a callous manner while slaughtering an innocent person. According to the prosecution story, the role assigned to the convict-respondent, as narrated above, is that he was armed with a pistol which was recovered during the investigation alongwith four live cartridges and he inflicted a fire- arm injury to the deceased, whereas the role attributed to the co-accused is that he was armed with a knife and cut the throat of the deceased causing his death. Therefore, the argument of the learned counsel for the appellant is not convincing that the convict-respondent has also acted in a desperate manner as we are not supposed to comment on the merits of the case which is uncalled for.
In the light of what has been discussed above, we are of the opinion that no illegality has been committed by the Shariat Court while releasing the convict-respondent on bail and the Shariat Court has rightly exercised the power conferred on it under Section 426, Cr.P.C. Finding no force in this appeal, it is hereby dismissed.