' AQEEL AHMED ABBASI, J.--Through listed application filed under section 426(1-A)(c), Cr.P.C. Appellants have sought their release on bail by suspending sentence during pendency of the instant appeal on various grounds including the ground of statutory delay.
2. Learned counsel for the appellants has argued that Criminal Appeal No.D-56 of 2011 was filed by the appellants against their conviction vide impugned judgment dated 18-5-2011 whereby the appellants were convicted under section 302(b), P.P.C. And sentenced to life imprisonment which was admitted to regular hearing on 17-6-2011 and office was directed to call R&Ps and prepare paper book whereas the appellants were required to pay cost within two weeks. Per learned counsel, cost was paid by the appellants within stipulated time whereas the paper book was prepared in November, 2011 whreafter case was fixed in Court for hearing of Miscellaneous Applications (under section 426(1-A)(c) Cr.P.C. Etc.) as well as Regular hearing on number of occasions when on each and every date of hearing the counsel for appellant was present and never sought an adjournment. However, on account of paucity of Court time and in view of pendency of large number of cases in Court, the matter could not proceed. It was further contended by the learned counsel for the appellants that several urgent applications were also filed on behalf of appellants for early hearing of the Miscellaneous Application as well as of main appeal, whereafter, dates were fixed by the Court, however, again on account of paucity of Court time and fixation of large number of cases on each date of hearing, the matter could not be heard and decided. It has been further contended by the learned counsel that an application under Rule 5 of Sindh Chief Court Rules was also filed on behalf of the appellants at principal seat of this Court before the honourable Chief Justice with a request to transfer the case from this bench to principal seat for early disposal of the case however, said application was disposed of with the directions of the honourable Chief Justice that the matter be heard and decided at Circuit Bench, Larkana expeditiously. Learned counsel further contends that one of the reason for delay in disposal of the instant appeal is that the respondents have filed criminal revision for enhancement of sentence as well as Constitution Petition against application of appellants to jail authorities which were directed to be heard along with instant appeal. However, the respondent did not proceed with such revision application or the Constitution Petition which has not only made hearing of appeal of the appellants complicated but also resulted in delay, Learned counsel for the appellants has drawn the attention of the Court to all the case diaries and submits that the counsel for appellants has never sought any adjournment hence the delay in hearing of the appeal cannot be attributed to the . Appellants, therefore, the appellants, who have remained in incarceration for more than 14 years, whereas, including remissions, they have almost undergone their entire sentence, are entitled to be released on bail by suspending their sentence during pendency of the appeal on the statutory ground as well. Learned counsel for the appellants in support of his contentions have placed reliance on the following case-law:-
(i) Tariq Shah v. The State 2012 PCr.LJ 634
(ii) Jaffar and 3 others v. The State 2012 MLD 1532 Sindh
(iii) Ghulam Mustafa and 2 others v. The State PLD 2011 Kar. 394
(iv) Muneer and another v. State PLJ 2014 Cr.C.(Lahore) 50 (DB)
(v) Muhammad Riaz and another v. State PLJ 2014 Cr.C. (Lahore) 59
(vi) Shahid Nazir v. The State 2013 YLR 260.
(vii) Muhammad Yousuf v. The State 2013 YLR 1589 (viii)Abdul Ghaffar v. The State 2012 PCr.LJ 21
(ix) Aftab Ahmed v. The State 2012 PCr.LJ 1760
(x) Manzoor Ahmed v. The State 2012 PCr.LJ 1172
(xi) Zia Akbar v. The State 2012 YLR 957
(xii) Makhdoom Javed Hashmi v. The State 2008 SCMR 165 (xii) Allah Ditta Khan v. The State PLD 2002 SC 845
(xiii) Ghulam Muhammad and others v. The State 2014 YLR 303
3. Conversely, the learned counsel for complainant has opposed the grant of bail to the appellants by suspending sentence and submits that instead of arguing the application under section 426(1-A)(c), Cr.P.C.
Learned counsel for the appellants may be directed to proceed with the main appeal which is also fixed for Regular hearing. It has been contended by the learned counsel that the appellants are not entitled to be released on bail by suspending sentence as they were not granted bail during their trial and their bail applications were rejected by this Court as well as by honourable Supreme Court. It has been further contended by the learned counsel that the counsel for appellants may be directed to proceed with the regular hearing of the appeal, criminal revision for enhancement of sentence and the constitution petition which are also fixed for hearing today along with instant appeal. Per learned counsel, the appellants have no case on merits as the impugned judgment does not suffer from any illegality, whereas, after conviction the presumption of innocence is not available to the appellants. In support of his contention the learned counsel has placed reliance on the following case-law:--
(i) Islam-ud-Din Shaikh v. The State PLD 2003 Karachi 266
(ii) Hafeez-ur-Rehman v. The State 1998 SCMR 423
(iii) Said Wali v. Haji Nazar Gul and others 2000 MLD 1356
(iv) Muhammad Hanif and others v. The State 2003 PCr.LJ 161
(v) Ahmed Din and others v. Muhammad Tazeem 2004 PCr.LJ 956
4. Learned A.P.G. After having examined the order sheet of this Court has candidly submitted that the delay caused in hearing of the instant matter cannot be attributed to the appellants as no adjournment was sought on behalf of the appellants on any date of hearing. He has further conceded that there seems no legal bar in hearing of listed application under section 426(1-A)(c), Cr.P.C. Which is also fixed for hearing today along with main appeal, however, submits that since a Criminal Revision No.D-38/2011 filed by the respondent seeking enhancement of sentence from life to death has also been fixed for hearing along with instant appeal, therefore, the appellants are not entitled to be released on bail under section 426(1-A)(c), Cr.P.C. By suspending sentence during pendency of the appeal. It is contended by the learned APG that there is possibility of enhancement of the sentence awarded by the learned trial Court to the appellants, therefore, in case of enhancement of sentence from life to death by this Court, the appellants will be disentitled to be released under section 426(1-A)
(c), Cr.P.C. In support of his contention, learned APG has placed reliance on the case of Ahmed Zia alias Bobi and others v. Malak Saifullah and others 2000 PCr.LJ 1378.
5. We have heard the learned .Counsel for the appellants and complainant as well as learned APG and perused the record. The listed application has been filed by the appellants seeking their release on bail under section 426(1-A)(c), Cr.P.C. By suspending sentence during pendency of the instant appeal which was filed against the impugned judgment of their conviction under section 302(b), P.P.C. To suffer life imprisonment. Appeal was admitted to regular hearing on 17-6-2011, the cost of paper book was admittedly paid within due date while the paper book was reportedly prepared in November, 2011 where after, on 30-8-2011, the matter was fixed for orders on M.A. No.1845/2011 filed under section 426, Cr.P.C. When office was directed to fix Criminal Revision No.D-38/2011 along with main appeal. On 6-10-2011 the matter was again fixed for orders on aforesaid M.A No.1845/2011 (under section 426, Cr.P.C) and on 24-11-2011 on the urgent application filed on behalf of counsel for appellants, the matter was fixed in the Court whereas notice on the aforesaid applicant (Under section 426, Cr.P.C) was issued for 12-1-2012 and the learned counsel for the appellants was directed to argue the appeal on the next date whereas office was directed to prepare paper book before next date of hearing however, case diary shows that the matter could not be fixed in Court on the given date, whereas, on 10-2-2012 it was fixed for hearing of Misc. Application and regular hearing, when it was simply adjourned. On 24-2-2012, on an application for urgent hearing filed on behalf of appellants, the matter was again taken up for orders on hearing of M.A No.444/2012 seeking direction of this Court to jail authorities for providing Medical treatment to appellant Allahando. On 2-3-2012 the matter was again taken up for hearing of the aforesaid application as well as for Regular hearing of the case, when the counsel for the complainant was not in attendance. Similarly, on 16-3-2012 the matter was again taken up for hearing of the aforesaid application as well as Regular hearing when the counsel for the complainant was again not in attendance. On 18-5-2012, the matter was adjourned for want of Court time to 25-5-2012 when the counsel for appellants started to proceed with the main case and when he was reading the paper book, the court time was over and the matter was adjourned to 1-6-2012. On 1- 6-2012 when the matter was again taken up for hearing of the application as well as main case the learned State counsel submitted that there is no way that this matter can be concluded today, hence the matter was adjourned by the Court to a date in office and it was further observed that it may not be treated as part heard matter. It is pertinent to note that on the aforesaid date counsel for the complainant was in attendance however he did not raise any objection with regard to adjournment of the case to a date in office nor he insisted for the hearing of Criminal Revision filed for enhancement of sentence. On 24-8-2012 the matter was again fixed in Court on the urgent application filed on behalf of the appellants for orders on two M.A Nos.2054 and 2055 of 2012 seeking direction of this Court to provide Medical treatment to the appellants. On 31-10-2012 the to matter was adjourned by consent to 15-11-2012 to be taken up at 12-30 p.m. On 15-11-2012 once again the matter was adjourned by consent to 5-12-2012 to be taken up at 12-00 noon. Thereafter the matter was fixed in Court on 5-12-2012, 13-12-2012, 20-12-2012, 16-1-2013, 11-3-2013, 21-5-2013, 10-6-2013, 8-7-2013, 21-8-2013, 19- 9-2013, 25-9-2013 and 3-12-2013, however, the same could not proceed and was being adjourned by the court for want of time, whereas, the counsel for the appellants did not seek any adjournment. On 21-1-2014 the matter was again fixed for hearing on the urgent application filed on behalf of appellants when the counsel for complainant was not in attendance and fix date was sought by the counsel for the appellants for 5-3-2014.
However, on 13-2-2014 the counsel for appellants filed an urgent application along with M.A No.57/2014 and this Court was pleased to call report from the Superintendent, Central Prison, Larkana regarding health of the appellants. On 5-3-2014 when the matter was again fixed for hearing before this Court, following order was passed: "After hearing all the learned counsel at some length with regard to hearing of application under section 426, Cr.P.C. All the learned counsel for the parties and A.P.G submit that application can be heard and dispose of on merits, however, counsel for complainant requests for short adjournment to prepare themselves in this regard.
By consent, adjourned to 11-3-2014 at 12-00 noon."
6. From the perusal of the case diary of this Court and the facts as reported hereinabove it emerges that the delay in hearing of the instant appeal cannot be attributed to the appellants who, on the other hand, are continuously making an effort for hearing of the case by filing urgent applications. Moreover, this fact has already been conceded by the learned APG and has also not been controverted by the learned counsel for the complainant. The contention of the learned counsel for the appellants with regard to non application of proviso to section 426(1-A)(c), also appears to be correct as the present appellants are not previous convicts/offenders for an offence punishable with death or imprisonment for life nor they are declared to be hardened, desperate and dangerous criminals or accused of an act of terrorism punishable with death or imprisonment for life. It has also come on record that the appellants who were sentenced to suffer life imprisonment have already remained in jail for more than 14 years, whereas, while including remissions they have already undergone almost the entire sentence of life imprisonment awarded by the trial Court. Two appellants are reportedly brothers of advance age who, as per their medical reports, are also suffering from certain diseases.
7. Accordingly, we are of the view' that the appellants have make out a case for grant of bail by suspending their sentence during pendency of instant appeal as there is no likelihood that instant appeal may be heard in near future, keeping in view the pendency of large number of cases before this Court, as only today, there are about 200 cases fixed for hearing: It will not be out of place to observe that instant criminal appeal has been directed to be heard along with Criminal Revision No.D-38/2012 filed by complainant for enhancement of sentence as well as another C.P. No.D-786/2012 also filed by the complainant. It cannot be expected that all these cases will be heard in near future particularly, in the absence of Regular bench for hearing regular cases in this Court, moreover, the hearing of all those cases are likely to consume considerable time. As regards, objection of learned APG that instant application under section 426, Cr.P.C. Cannot be heard as a criminal revision for enhancement of sentence is also pending, we are not in agreement with such contention of learned APG particularly, when no show cause notice for enhancement of sentence from life to death, as required in terms of section 439(6), Cr.P.C. Has been issued so far to the appellants. We are of the view that mere pendency of the criminal revision application in the absence of issuance of aforesaid statutory notice to the accused, would not render the statutory provisions under section 426, Cr.P.C. As redundant. Learned APG has not referred to any legal provision which may support his contention whereas the case-law relied by learned APG is based on distinguishable facts as in the cited case the accused were issued statutory notice under section 439(6), Cr.P.C.
It is pertinent to note that the complainant has never proceeded with the criminal revision for the enhancement of sentence, on the contrary agreed for the hearing of the appeal as well as the pending application in the instant case.
8. Accordingly, we are of the view that the appellants have make out a case for grant of bail under section 426(1-A)(c), Cr.P.C. By suspending their sentence during pendency of the appeal which was granted to them subject to their furnishing surety in the sum of Rs.500,000 and the P.R. Bond in the like amount each vide our short order dated 11-3-2014 and these are the reasons for such order.