1. ' AFTAB AHMED GORAR, J.---The appellant Mehmood having been aggrieved by his conviction and sentence awarded vide judgment dated 5-8-2010 passed by learned Sessions Judge. Mirpurkhas in Sessions Case No. 11 of 1999 has preferred this appeal. Vide impugned judgment appellant has been sentenced to suffer life imprisonment for offence under section 302(b), P.P.C. And to pay fine of Rs.50,000 and in default to suffer S.I. For six months more. He was also convicted under section 452, P.P.C. And sentenced to suffer R.I. For seven years and to pay fine of Rs.50,000 and in default to suffer S.I. For six months more. Through C.M.A. 8051 of 2012 he has prayed for suspension of the, sentence awarded to him.
2. ' Learned counsel for the appellant has mainly pressed the application on the ground of statutory delay. Para 13 of the application says. "That on merits the appellant has a good case but this application is pressed on the ground of statutory delay only." In this view of the matter I will only deal with the ground of statutory delay. According to learned counsel, although a period of more than two years has passed, but the appeal has not been decided within the statutory period of two years of conviction of the appellant as envisaged by subsection (c) of newly added subsection (1- A) to section 426, Cr.P.C. He further contended that the delay in the decision of appeal has not occurred due to any act or omission on the part of the appellant; that the appellant is not a previously convicted offender for an offence punishable with death or imprisonment for life nor he is a hardened, desperate or dangerous criminal and nor he is an accused of an act of terrorism. He relied upon the decisions reported in 1995 SCM R 1819, 2012 PCr.LJ 1172, 2012 YLR 1013, 2012 PCr.LJ 634, 2012 YLR 825, 2012 YLR 77 and unreported decisions in Criminal Appeal No.367 of 2010 and Criminal Appeal No.S-84 of 2008.
3. ' Conversely, learned counsel for the complainant opposed the application contending that the appellant is an aggressor as he inflicted hatchet injuries to the deceased in a brutal way merely for the reason that he did not salute him. Such conduct of the appellant brings him under the category of hardened, desperate and dangerous offender, as such by virtue of proviso to subsection (1A) recently added in section 426, Cr.P.C. He is not entitled to the said concession. In support of his contention, he relied upon the cases reported in 1992 SCM R 1903, 1994 PCr.LJ 389, 1996 PCr.LJ 740, 1986 PCr.LJ 2184, 1998 SCM R 1749 and PLD 2002 (SC) 43.
4. ' Learned A.P.-G. While adopting the arguments advanced by the learned counsel for the complainant's advocate, opposed the application for suspension of sentence. She submitted that it will be in the fitness of things that instead of deciding the listed application, entire appeal is finally heard and decided within shortest possible time.
5. ' I have heard the learned counsel for the appellant, learned counsel for the complainant as well as learned A.P.-G. And perused the material available on record.
6. ' The newly added subsection (1A) to section 426 Cr.P.C., inter alia, empowers the Appellate Court to pass orders for release of a' convicted person on bail who has 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. However, proviso to the said subsection provides that the provisions of this subsection 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.
7. ' The appellant was convicted on 5-8-2010, instant appeal was filed on 26-8-2010. From the perusal of the order sheet, it appears that on each every date of hearing learned counsel for the appellant was in attendance and not a single adjournment has been sought by him, nor the disposal of the appeal has been delayed on account of any act or omission on the part of the appellant. Even learned counsel for the complainant or for that matter learned A.P.G. Did not controvert this position. The only ground raised by the learned counsel for the complainant for rejecting the application is that the conduct of the appellant and the brutal and cruel way in which he murdered the deceased is of such a nature which brings him under the category of hardened, desperate and dangerous offender and disentitles him to the said concession by virtue of prohibition imposed vide proviso to subsection (1A) of section 426, Cr.P.C.
8. ' After perusing the record, I am of the opinion that the act of the accused is not of such a .Nature which could bring him under the prohibitory clause of newly added subsection (1A) to section 426, Cr.P.C. No material has been placed on record to show that the appellant is an habitual or previously Convicted offender. Of course in the alleged incident a valuable life has been lost but after hearing the appeal it is yet to be decided as to whether the conviction of the appellant is in accordance with the law or not, till such time appellant cannot be deprived of the benefit which has been bestowed upon him by virtue of newly added provision of law viz. Subsection (1A) to section 426, Cr.P.C.
9. ' I do not find any distinguishable feature in the instant case so as to justify myself to divert from the principle settled in various decisions of the superior courts relied upon by the learned counsel for the appellant. The decisions relied upon by the learned counsel for the complainant are relevant' only in respect of a case in which the appellant has been declared hardened, desperate or dangerous criminal which is not so in the instant case.
10. ' The upshot of above discussion is that listed application for suspension of sentence is allowed.
11. Consequently, the sentence awarded to the appellant vide impugned judgment is suspended and he is ordered to be released on bail subject to his furnishing solvent surety in the sum of Rs.33,00.000 (Rupees Three Lacs only) and P.R. Bond in the like amount to the satisfaction of the Nazir of this Court.
12. ' However, office is directed to fix this appeal immediately after winter holidays for regular hearing.