' SALAHUDDIN PANHWAR, J.--- The petitioner has invoked the extraordinary jurisdiction of this Court to seek suspension of sentence in Crime No. 279' of 2011 Police Station Kharadar, punishable under sections 324, 353, 452, 395, 436, 149, 148, P.P.C. Read with section 7 of the Anti-Terrorism Act 1997.
2. The relevant facts of the case are that the complainant Zeeshan Israr lodged F.I.R. No. 279 of 2011, that he lives at Sughra Manzil, Thokar Gali, Juna Market, having the business of cloths, when on 8-7- 2011, he had gone from his house to Imam Bargah for Namaz, he received information on telephone at 2-45 p.m. That 40/45 people, armed with weapons had attacked and entered in his house and has took away gold ornaments, cash, repeater with license. On this information, he rushed to his home and saw that the some people were armed with weapons firing and few of them were available in his house with petrol and set the house on fire. Complainant called the police and rangers three mobiles and APC came, whereupon the accused person also started firing at them.
Police retaliated upon which the accused persons attempted to escape but police arrested two accused persons from adjoining street at about 1530 hours. The police interrogated them, they disclosed their names as Rizwan son of Abdul Ghani and Attaullah son of Haji Yar Muhammad.
After investigation police submitted challan in Anti-Terrorism Court, trial was commenced, on completion, they were convicted on following terms:-- "From the above discussed evidence, I answer points Nos. 3, 4 and 5 as proved. The two accused Rizwan son of Abdul Ghafoor and accused Attaullah son of Haji Yar Muhammad are found guilty of offence under section 6 subsection (2)(m) & (n) of Terrorism Act, 1997 involving themselves in serious coercion and intimidation the police official from discharging their duties by firing, punishable under section 7(H) of Anti-Terrorism Act 1997 the punishment of which is not less than five years. Therefore each of them is sentenced to minimum punishment for 5 years as well as for five years in both their cases of 13-D Arms Ordinance. They are young and do not have criminal record therefore their minimum punishment/ sentence are to run concurrently. They are given benefit of section 382-B Cr . P. C "
3. Learned counsel has, inter alia, contended that the petitioners were arrested on 8-7-2011, whereas they have been convicted by the trial Court for five years by judgment dated 31st January, 2012. The petitioners are behind the bars since one year; the law of Anti-Terrorism Act 1997 provides mandatory provision under section 25(5) that appeal to be decided within seven working days, but due to backlog of appeals in the High Court, there is no possibility of conclusion of appeal in near future. The petitioners were convicted for five years. One year has already been passed in jail and four years are remained; petitioners are entitled for bail on the ground of short sentence. He has relied upon unreported case of Muhammad Aamir Khan decided in CP-D 1903 of 2003, 1997 SCMR (sic), 2012 PCr.LJ 387, 2011 YLR 403, 2008 YLR 1255.
4. Conversely, Assistant Prosecutor General for State has argued that this Hon'ble Court has no jurisdiction to grant bail in writ petition as under Anti-Terrorism Act 1997, there is complete embargo under section 25 subsection (8) on grant of bail during pendency of appeal.
5. Heard learned counsel for parties. Perused record.
6. We will dilate upon the issue of maintainability raised by State Counsel that under writ jurisdiction High Court has no powers to suspend the operation of sentence and grant bail, this issue is already decided, in case of Muhammad Jehangir v. The State, reported in PLD 2003 SC 525, it is observed as under:-- "wherein the apex Court observed that prosecution should make all efforts to have the case decided within 30 days, inordinate delay could be considered as a ground for bail and apex Court directed the trial Court to conclude trial within 30 days on day to day basis and in case trial is not concluded within given time petitioner to be admitted to bail in the sum of 2 million and PR bond in the amount by the trial Court".
7. In the case of Allah Din and others v. Special Judge, Anti-Terrorism Court, reported in PLD 2008 Lahore 74, it is observed as under:-- "We hold that in spite of the bar under section 25(8) of the Anti-Terrorism Act 1997 qua the release of a convict, on bail during the pendency of his appeal, High Court is not deprived of the authority/ jurisdiction to grant said relief under extraordinary constitutional jurisdiction in view of Article 199 of the Constitution of Islamic Republic of Pakistan. Accordingly we hold that in exercise of its extraordinary constitutional jurisdiction High Court in exceptional cases can suspend the sentence of a convict during the pending of his appeal when satisfied that it is a case of coram non judice or there is inordinate delay in disposal of appeal or the sentence is short and there is no possibility of hearing of appeal in near future and where the convict during the pendency of his appeal before the appellate Bench develops an ailment of the nature that keeping him in detention/ confinement may result into his death and that he cannot be provided requisite treatment under detention in the Government and/or other hospitals. We are also of the considered view that the said provision of statute i.e. Subsection (8) of section 25 of the Anti-Terrorism Act 1997 is harsh in nature and contrary to principles of natural justice. Accordingly we recommended for suitable amendment in the legislation".
In view of the dicta laid down in above referred cases, we are in same view that High Court can suspend the sentence and grant bail during pendency of appeal under writ jurisdiction in cases of Anti-Terrorism Act, 1997.
8. Counsel for petitioner prays for bail on only one ground that is short sentence, the case-law cited on this point is that in case of Abdul Hameed versus The State, honourable Supreme Court held that "since the sentence was short one and sentence was enhanced by the Additional Sessions Judge from three years to five years, sentence was suspended", in case of Nazeer Ahmed alias Nazeer v. The State reported in 2011 YLR 403, High Court held that "the sentence is short, the appeal may take sufficient time, the sentence awarded to appellants suspended". Same view was followed in cases Muhammad Iqbal v. The State, reported in 2008 MLD 1376, Ilyas alias Billu v. The ,State, reported in 2008 MLD 312, Falak Sher v. The State, reported in 2008 MLD 103, Ghulam Murtaza v. The State, reported in 2007 YLR 1293, Muhammed Imran v. The State reported in 2006 PCr.LJ 657, Nazeer Ahmed v. The State, reported in 2005 PCr.LJ 657, Muhammed Hashim v. The State, reported in 2004 YLR 1492, in all decisions, same proposition of law is settled by the High Court and Hon'ble Supreme Court, that five years conviction is being considered as short sentence, and sentence was suspended in above referred cases.
9.Keeping in view dicta laid down in series of descions, which falls within limitations of doctrine of stare decisis the subject matter pertains same criteria accused were convicted for five years has been passed there is no likehood of regular hearing of appeal in near future the sentence is short, if the petitioners will not be released on bail during pendency of appeal, there is every apprehension that before decision they would have undergone their entire sentence thus this is a fit case to suspend the sentence and release them on bail, however petitioners are directed to be present on hearings of this appeal.
10. We have suspended operation of judgment dated 31-1-2012, passed by Anti-Terrorism Court No. II, Karachi and have granted bail to the petitioner by a short order dated 25-7-2012, on furnishing surety in the sum of Rs.100,000 each and PR Bond in the like amount to the satisfaction of Nazir of this Court and these are the detail reasons for the same.