QAZI MUHAMMAD AMIN AHMED, J.---Through this Constitutional petition, Waseem Abbas, petitioner herein, seeks suspension of execution of sentence awarded by learned Judge Anti Terrorism Court-II Rawalpindi vide impugned judgment dated 4-11-2017; he was indicted for dissemination of material calculated to incite sectarian haters. uploaded on Face-book, framed through forensic verification; convicted on two counts under sections 9 and 11 of the Anti Terrorism Act, 1997, he is sentenced to five years rigorous imprisonment with fine of Rs,5000/- on each count along with benefit of section 382-B of the Code of Criminal Procedure, 1898; sentences were ordered to run concurrently.
2. Learned counsel contends that appeal filed by the convict has not been decided within the period statutorily provided under the Act and thus, a case for his release on bail through suspension of execution of sentence stands made out in exercise of Constitutional jurisdiction by this Court. Conversely, learned Law Officer has contested the plea on the ground that being in receipt of a guilty verdict on the charge of inciting division and disharmony in an already volatile society, petitioner is not entitled to any concession in equitable discretionary jurisdiction of this Court and given the period of sentence underwent by him having regard to the quantum of sentence, his case cannot be termed as one of hardship.
3. Heard.
4. Having been returned a guilty verdict, it would be inexpedient to comment upon the merits of petitioner's case; he stands convicted and sentenced in a special jurisdiction and no doubt, the Statute requires the High Court to hear and decide his appeal within seven working days, nonetheless, at the same time, it places a complete bar upon release of a convict on bail. Certainly the Court is vested with ample authority to release a convict in exercise of its Constitutional jurisdiction, however, power of this amplitude is to be exercised with circumspection, sparingly in cases of extreme hardship and while by no stretch of imagination hardship of a prisoner, in terms of rigors of incarceration, could be quantified to deny him extenuation, his release on bail on account of non-disposal of appeal within the stipulated period would defeat the very purpose of the Special Law, as the Constitutional jurisdiction cannot be invoked to defeat legislative intent or circumvent statutory bars. In the case of Tasaddaq Hussain alias Mithu, convicted by a Special Judge Anti-Terrorism Court-I, Gujranwala, bail granted by a learned Division Bench of Lahore High Court Lahore vide order dated 13-5-2014 was cancelled by the Supreme Court of Pakistan vide order dated 28-11-2014 in Civil Petition No,1305 of 2014, relevant portion whereof, is advantageously reproduced below:-- "Upon perusal of the case law cited by the learned counsel, we agree with the learned counsel for the petitioner Khan Asfandyar Wali's case (supra) was concerned with situation in which there was total ouster of the jurisdiction of the Court to grant bail even at the trial stage and it was held that High Court could in appropriate cases grant bail under its Constitutional jurisdiction. The question of suspension of sentence was directly in issue before this Court in the three cases cited by the learned counsel for the petitioner. The State v. Syed Qaim Ali Shah (supra) was a. case where the respondent was convicted and sentenced under the Suppression of Terrorist Activities (Special Courts) Act, 1975. This Court while dealing with ouster of the jurisdiction of the Appellate Court under Section 426, Cr.P.C. held that the High Court could exercise its powers under Section 561-A Cr.P.C. in cases of hardship, for example serious ailment of the convict which might endanger his life. The same principle was followed in the cases of Pervaiz Akhtar v. Muhammad Inayat and others (supra) and the bail granted to the respondent was recalled as the ground for suspension of his sentence did not fall within the exception laid down in Syed Qaim Ali Shah's case (supra). Again in Amjad Hassan Gurchani v. Sajjad Haider Khan (supra) it was reiterated that only in cases of hardship like pendency of the appeal of the convict for a number of years or ailment detrimental to the life of the accused can the sentence be suspended by the Appellate Court of a person convicted under the Suppression of Terrorist Activities (Special Courts) Act, 1975.
In the present case the High Court had admitted the Respondent to bail on merits without adverting to the question of jurisdiction when there was a clear ouster of the powers of the Appellate Court to grant bail under section 25(8) of the Anti-Terrorism Act, 1997. In the light of consistent view of this Court the respondent was not entitled to bail simply on the tentative merits of the case."
We do not feel persuaded to release the petitioner on bail, however, office is directed to post the main case with a convenient dispatch. Writ Petition No, 3367 of 2016 is dismissed.