' M. Tabassum Aftab AM, J.--The captioned applications have been filed by convict-petitioners for suspension of sentences awarded to them by Additional District Court of Criminal Jurisdiction, Muzaffarabad, vide its judgment dated 10.04.2013, and for giant of bail.
2. The facts pithily stated are that on written report of Mst. Hakam Jan, complainant, a case under Sections 302/34, A.P.C was registered against unknown persons at Police Station, Danna, on 06.10.2011, however, during investigation, petitioners were apprehended on 14.01.2012, and after usual investigation, a challan in offences under Sections 302, 34, 458, 337-A, F(1) A.P.C., 20, EHA and 13/20/65, Arms Act, was submitted before District Court of Criminal Jurisdiction, Muzaffarabad, on 09.02.2012, which was entrusted to Additional District Court of Criminal Jurisdiction, Muzaffarabad, for hearing and disposal under law, vide order dated 18.02.2012. The trial Court after conclusion of trial, awarded sentences to 10 years rigorous imprisonment to convict-petitioners, Syed Waqar Gillani and Raja Aashiq Hussain, under Sections 302(c)/34, A.P.C., whereas they were also convicted and sentenced to 01 year, rigorous imprisonment -alongwith fine of Rs, 3000/- each under Section 458, A.P.C. The convict-petitioners were further sentenced to 03 years, rigorous imprisonment alongwith fine of Es. 5000/- each under Section 20, EHA and in default of payment of fine, they shall have to undergo 06 months each simple imprisonment, while they were acquitted of the charge in offences under Section 337-A, F(1) and the Case to the extent of offences under Section 13/20/65, A.A., was dismissed. They were extended benefit of Section 382-B, Cr.P.C. Too, vide judgment doted 10.4.2013. It was also ordered that the sentences shall run concurrently. Feeling aggrieved from the aforesaid judgment, complainant filed an appeal before this Court for enhancement of sentences on 09.05.2013, whereas convict-petitioners also instituted an appeal before this Court through Superintendent Central Jail, Muzaffarabad, on 23.07.2013, which are awaiting disposal. Now, convict-petitioners seek bail on the ground of statutory delay in disposal of appeals through the above captioned applications, which are the subject matter of the instant order.
3. Kh. Ataullah Chak, the learned Counsel for the convict-petitioners submitted that two cross appeals have been filed before this Court against the impugned judgment dated 10.04.2013, which are pending since 2013 and the delay in disposal of appeals ilas not been occasioned on the part of convict petitioners or their Counsel, whereas they are behind bars for the last 05 years; therefore, the sentences may be suspended because there is no eye-witness in the case, so bright chances are exist for acquittal of convict-petitioners. The learned Counsel further submitted that convict- petitioners were convicted and sentenced to 10 years each rigorous imprisonment, out of which, they have undergone almost 05 years therefore, by accepting the instant applications, the sentences may be suspended till disposal of appeals. The learned Counsel stressed on the point that as appeals have not been decided within two years; therefore, the case of convict-petitioners covers under the amended provisions of Section 426(1-A) (c), Cr.P.C., which makes them entitled to be released on bail. The learned Counsel lastly craved for acceptance of applications.
4. On the contrary, Sardar Muhammad Hafeez Khan, the learned Additional Advocate General representing the State argued that convict petitioners committed offence of murder, who were rightly convicted and sentenced by the Additional District Court of Criminal Jurisdiction, Muzaffarabad; therefore, they are not entitled to be released on bail, rather the appeals ought to be decided on merits. The learned State Counsel further submitted that the convict-petitioners have been awarded sentence to 10 years rigorous imprisonment and the Courts are always reluctant to suspend sentences in such like cases; hence, he prayed for dismissal of the instant applications.
5. We have given, our dispassionate thought to the arguments addressed at Bar and perused the record with utmost care.
6. In the present case, as per prosecution story, Mst. Hakam Jan and her husband Raja Alidad were sleeping in their house on the night of 5.10.2011, when at about 10:30 p.m.. Some unknown peisons entered in the house and tied them. The aforesaid unknown persons gave them severe beating and one of them pointed pistol on the temple of Mst. Hakam Jan. She also heard voice of her husband, who was moaning in pain and was saying that someone had tied him with the cot. The accused taking advantage of darkness took away a Nokia mobile set and an emergency light. Mst.
Hakam Jan noticed that some unknown persons had caused daggerlOthurri blow on left side ribs of her husband. She, by providing support, took him in the veranda where he asked for water, which 'vas given to him, who after drinking some water, succumbed to the injuries." She made hue and cry, thereupon Mst. Mashkoor Jan, arrived at the spot. During 'investigation, having suspicion, convict-petitioners were arrested on 14.01.2012 and after completion of investigation, were sent to face trial before concerned Court, whereby they, after conclusion of trial; were convicted and awarded sentences to 10 years rigorous imprisonment under Sections 302(c)/34, A.P.C. They were also awarded sentence to 01 year rigorous imprisonment alongwith fine of Rs, 3000/- each under Section 458, A.P.C. The convict-petitioners were further sentenced to 03 years rigorous imprisonment alongwith fine of Rs, 5000/- each under Section 20, EHA, and in default of payment of fine, they shall have to undergo 06 months simple imprisonment each, while they were acquitted of the charge in' offences under Section 337-A, F(1), and the. Case to the extent of offences under Section 13/20/65, A.A., was disniissed. They were also extended benefit of Section 382-B, Cr.P.C., vide judgment dated 10.04.2013, and it was ordered that the sentences shall run concurrently. Against the aforesaid impugned judgment two cross appeals before this Court are awaiting disposal. Now, convict-petitioners seek bail under Section 426(1-A)(C) on the ground of statutory delay in disposal of appeals
7. The matter in hand pertains to suspension of sentences awarded to the. Convict-petitioners by Additional District Court of Criminal Jurisdiction, Muzaffarabad, and to grant bail to them. We are alive that there should be some strong and cogent reasons for ascertaining as to whether the conviction will sustain or not. No doubt, it is the entire discretion of the Court to suspend sentence, but the discretion has to be exercised judiciously by considering the relevant facts and circumstances of the case without entering into or commenting upon the merits of the case. It is important to note that the sentence awarded by a Court should not be taken lightly or suspended in a routine, rather it is fundamental duty of the Court not to suspend the sentence just in a routine.
However, the Court may suspend the sentence only after considering whether the convict has a prima facie case and the conviction is likely to be set aside in appeal. The aforesaid view finds support from a case reported as Ch. Muhammad Riasat and another v. Muhammad Asghar and another (2010 SCR 1).
"Some very strong grounds are required for the suspension of sentence. There must be strong and cogent reasoning, through which it can be ascertained that the conviction will not sustain. No doubt that it is the entire discretion of the Court, but the discretion has to be exercised judiciously by considering the relevant facts without entering into or commenting upon the merits of the case.
When the contention raised requires consideration of merits, the appellate Court would refrain from entertaining such contention. This view finds support from a case reported as Bashir Ahmad vs. Zulfiqar and another [PLD 1992 SC 463] In the instant case the respondent, Muhammad Asghar, was convicted by the trial Court and not extraordinary circumstances have been shown by the Shariat Court while allowing concession of bail to him. The learned counsel for Respondent No, 1 also could not point out such extraordinary circumstances on the basis of which it could be said that he was entitled for suspension of sentence. It is pertinent to note that the sentence awarded by a Court should not be taken lightly or suspended in a routine. There must be some cogent and solid reasons for suspension of sentence. It would not be out of place to mention here that it came to our notice that the lower Courts are suspending the sentences and allowing the concession of bail to the convict persons just in a routine, while it is the fundamental duty of the Court not to suspend the sentence just in a routine. The lower Court should suspend the sentence only after considering whether the convict has a prima facie case and the conviction is likely to be set 'aside in appeal."
8. Adverting to the argument of the learned Counsel for convict-petitioners that in light of amended provisions of Section 426, Cr.P.C., they are entitled to be released on bail, as statutory period of two years has elapsed and there is nothing on record which could show that delay in decision of appeal has been occasioned on the part of convict-petitioners or their Counsel. The aforesaid amendments in Section 426, Cr.P.C. Were made applicable in AJ&K through Ordinance dated 10.10.2012 and later on through Act XVI of 2 014 dated 07.04.2014. In order to elucidate the matter we would like to reproduce the relevant amendment of the aforesaid section as under:- "Amendment of Section 426, Act V of 1898:-In the said Code, in Section 426, after sub-section (1), the following new sub-section (1-A) shall be inserted:- "(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 to;--
(a) ..
(b) .
(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."
We are alive that normally in a murder case, after conviction, bail is not allowed to a convict' by suspending his conviction and sentence until and unless exceptional circumstances are shown to exist for doing so, however, a plain reading of the aforesaid amended provisions of Section 426, Cr.P.C. Reveals that the convict-petitioners have earned statutory right for suspension of sentence under Section 426(1-A) (c) of the Code of Criminal Procedure, 1898. However, before suspension of sentence and to grant bail, the legislature has imposed an .Obligation and responsibility upon the .Court to first ascertain and examine the cause of delay. A convicted person may be released by the Court on bail,' 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 applicant or any other person on his behalf. This statutory right is subject to the fulfillment of the criteria and decisive factor prescribed under clauses (a) to
(c) of sub-section (1-A) of Section 426, Cr.P.C. Which is germane to the particular period of sentence and time specified for decision of appeal in which it has not been decided by the Court.
As per conditions laid down in the proviso, it is also to be examined essentially whether the person applied for bail is not previously- convicted offender for an offence punishable with death or imprisonment for life or a person who in the opinion of Appellate Court is hardened, desperate or dangerous criminal or is accused of an act of terrorism punishable with death or imprisonment for life.
9. Now, it is to be determined as to whether delay in decision of appeal filed by convict-petitioners occasioned on the part of convict-petitioners or their learned Counsel and whether they are previously convicted offenders or hardened, desperate or dangerous criminals. A perusal of record reveals that the delay in decision of appeals has not been occurred due to convict-petitioners or their learned Counsel. Moreover, nothing has been brought on record which could show that the convict-petitioners are hardened, desperate or dangerous criminals or they have been previously convicted offenders. They are continuously behind the bars for the last four and .Half years. They have been sentenced to 10, years rigorous imprisonment each by.Trial Court, vide its judgment dated 10.4.2013, and their appeal before this Court was filed through Superintendent Central Jail, Muzaffarabad, on 23.07.2013, which admittedly has not been decided within a period of two years of their conviction; therefore, their case is covered under Section 426(1-A)(c), Cr.P.C. And they are entitled to be released on bail as per statutory ground. The aforesaid view finds support from a case reported as Khalid Mahmood v. The State [2000 YLR (Lahore) 163], wherein it was observed as under:-- "Admittedly, the petitioner is continuously in jail for the last more than two years and his appeal has not been decided so far and as per office report, his appeal is not likely to be fixed for a couple of years more, as such, his case is covered under Section 426(1-A)(c), Cr.P.C., which provides that an Appellate Court shall, unless for reasons to be recorded in. Writing it otherwise directs, order a convicted person to be released on bail who has been sentenced to imprisonment for life and whose appeal has not been decided within a period of two years of his conviction. Reliance can be safely placed on Muhammad Yaqoob and others v. The State (1991 SCM R 1459), as such, this petition is allowed and the sentence of the petitioner is suspended and he shall be released on bail provided he furnished bail bond in the sum of rupees one lac with one, surety in the like amount to the satisfaction of the trial Court."
' Therefore, in light of above, scenario, we are persuaded to accept the instant applications and suspend the sentences of convict-petitioners.
10. The crux of above discussion is that keeping in view the peculiar facts and circumstances of the case, the sentences of convict-petitioners are suspended on the basis of statutory ground, as their appeal could not be decided within a period of two years; therefore, they shall be released on bail provided they furnish bail bonds in sum of Rs, 5, 00, 000/- (five lac) each with two sureties in like- amount to the satisfaction of Registrar of this Court, if not required in any other case or offence.. A copy of the order shall be annexed with other relevant file.