' MUHAMMAD NOOR MESKANZAI, C.J.---By this common order, we intend to dispose of the above titled applications, which involve same common legal factual questions.
2. Facts of the instant applications are that FIR No,68/2013 under section 302, P.P.C. And FIR No,69/2013 were registered against the applicant. The cases were tried by the Special Judge, Anti- Terrorism Court-I, Quetta and eventually, vide judgments dated 23rd February, 2015, the applicant was convicted and sentenced for life imprisonment and under section 302, P.P.C. Read with section 7-ATA, and for three years under section 13(e) of the Arms Ordinance. Feeling aggrieved the applicant preferred Criminal Appeals (ATA) Nos.39 and 40 of 2015 against the said judgments before this Court, which were dismissed vide . Judgment dated 19th October, 2015. The applicant thereafter approached the Hon'ble Supreme Court by way of filing Criminal Petitions Nos.61-Q and 62-Q of 2015. The Hon'ble apex Court, vide order dated 16th February, 2016 granted leave to appeal.
Through these applications filed under section 426(2-B), Cr.P.C., the applicant seeks suspension of the sentences passed by the trial Court, upheld by this Court.
3. Learned counsel for the applicant states that since leave to appeal have been granted in both the cases referred to herein above by the Hon'ble apex Court, therefore, the applicant is entitled for suspension of the sentences and his release on bail. To substantiate his contention, he placed reliance on an unreported judgment of this Court in Criminal Miscellaneous Application No,(T)02 of 2015. The learned counsel added that this Court has jurisdiction to suspend the judgments_ According to the learned counsel, the applicant is in custody since long and there is no possibility of the appeals being disposed of in near future, therefore, the applicant is entitled for the grant of bail.
4. Learned Additional P.G. Opposed the contention of the applicant for suspension of the sentences and maintained that the applicant has committed an offence under Section 302, P.P.C. r/w Section 7 of ATA, 1997, and has been sentenced for life imprisonment and imprisonment of three years, respectively, therefore, he does not deserve the concession of bail, by suspension of his sentences.
5. We have heard learned counsel for the parties and perused the available record. The question for consideration in these applications is as to whether by granting leave to appeal by the Hon'ble Supreme Court, the conviction and sentence awarded to the applicant can be suspended as of right? In this regard, Section 426(2-B) Cr.P.C. Is much relevant, which is reproduced as under: "Where a High Court is satisfied that a convicted person has been granted special leave to appeal by the Supreme Court against any sentence which it has imposed or maintained, it may if it so thinks fit order that pending the appeal the sentence or order appealed against be suspended, and also, if said person is in confinement, that he be released on bail."
6. Perusal of above provision of law reflects that for the suspension of the sentence granting leave to appeal is one of the conditions, but the sentence could only be suspended if the High Court thinks it fit, meaning thereby that discretion still rests with the High Court. In this case, no doubt, the first requirement to avail the remedy under Section 426(2-B), Cr.P.C. Stands satisfied. But the applicant is required to satisfy the Court to suspend the sentences. The provisions of Section 426(2-B), Cr.P.C. Shall not be read in isolation with the provisions of subsection (1) of Section 426, Cr.P.C. The convict has to show that during the pendency of appeal before the Hon'ble Supreme Court, the appeal could not be disposed of within the stipulated period, the judgment sought to be suspended suffers from a legal error, the convict was on bail during the A appeal pending before the High Court and a legal bar for suspension of the sentence does not exist. Definitely while dealing with an application under Section 426(2-B), Cr.P.C., the merits of the case cannot be touched, nor reappraisal of the evidence is permitted. Considering the case of the applicant with this perspective, it is evident that the requirement of Section 426(1), Cr.P.C. Does not attract in this case. The applicant has failed to show a ground for granting relief by exercising jurisdiction under Section 426(2-B) Cr.P.C.
7. Moreover, while dealing the matters of bail in the offences that are tried under the Anti Terrorism Act, 1997, has its own mechanism. A convict cannot be released on bail during the pendency of the appeal as contemplated by Section 25 subsection (8) of the ATA, 1997, which is reproduced herein below: "(8). Pending the appeal in the High Court shall not release the accused on bail."
So on the same analogy how it would be possible for such a convict to get the sentence suspended at the strength of Section 426(2-B), Cr.P.C. After the disposal of appeal on merits by the High Court. In our opinion the bar contained in section 25 subsection (8) of ATA, 1997 fully attracts in this case and being a special law, it would prevail upon section 426(2-B), Cr.P.C. In this regard, we are fortified by the dictum laid down in the judgment titled as Atta Ullah alias Hasnain alias Hassan v. The State reported in (2009 PCr.LJ (Lahore) 257); (relevant at page-260), wherein it was observed as under: "8. This Court pending the appeal of a convict can suspend the sentence under section 426, Cr. P.
C. But in case tried by Anti-Terrorism Court the said powers is not available in view of bar contained in section 25(8) of the Anti-Terrorism Act 1997. When a Court cannot exercise a power of releasing the accused on bail during the pendency of appeal before it, in our view the said jurisdiction cannot, be exercised even after the decision of appeal by invoking provisions of section 426(2-B), Cr.P.C."
' As far as the unreported judgment of this Court referred by the learned counsel is concerned, of course there is no cavil with the proposition laid down therein, but the facts of the cases are altogether different from ,the facts of the case in hand. It is important to mention here that in the referred case, the conviction was not under the provisions of the ATA. In that case the High Court reduced the sentence by altering the charge from 302-b, P.P.C. To 302-c, P.P.C . Furthermore, in that case, the Hon'ble apex Court was pleased to make some observations on merits. While granting leave to appeal. Hence, the referred case is of no help to the applicant.
' For the foregoing reasons, we see no merits in the instant applications, which are dismissed.