1. ABDUL MAALIK GADDI, J.---Through this application filed under Section 426, Cr.P.C., the appellants seek suspension of sentences awarded by the learned IInd Additional District and Sessions Judge, Thatta, in Sessions Case No.100 of 2011 arising out of Crime No.14 of 2011 registered at police statio n Chuhar Jamali under Section 302/34, P.P.C., whereby the learned trial Court vide judgment dated 27.05.2015, convicted the appellants under Section 302(b), P.P.C. and sentenced them for life imprisonment with fine of Rs.200,000/- each and in case of recovery of the fine amount, the same will be paid to the legal heirs of the deceased Mohammad Sulleman as compensation and in case of default, it was further ordered that appellants will suffer six months' more S.I.
2. However , appellants were also extended benefit of Section 382(B), Cr .P.C. for the period they remained in jail, It has been contended by learned Counsel for appellants that instant appeal has been admitted to regular hearing vide order dated 09.1.1.2015, since then, this appeal has yet not been heard; that the appellants were arrested in the year 2011, since then, they are in jail; that jail roll of the appellants shows that they have completed their sentences including remissions for about eight (8) years, ten (10) months and twenty seven (27) days; that complainant Nooh Jamali has filed his own affidavit before this Court, which is available on record, stating therein that he has no objection if the accused be released, as the matter has been decided outside the Court through Nek Mard; that on merits, there are number of contradictions in between the prosecution witnesses, which has not been considered by the trial Court and it is a fit case for acquittal; that this appeal is pending since 2015, since then, it has not been decided due to burden of cases lying in this Court, therefore, the hearing of appeal may take some time and evidence of prosecution witnesses and observations of trial Court are still to be re-appreciated and re- evaluated, therefore, the sentence may be suspended.
3. Mr. Zahoor Shah, learned Deputy Prosec utor General, Sindh assisted by Mr. Abdul Haleem, the learned Counsel for complainant has submitted that appell ants are in jail for the last eight years and the complainant had also filed his own statement in which he has recorded his no objection if the accused be released, as they have compromised the matter outside the Court.
4. Heard and perused the record.
5. It appears from the record that this appeal has already been admitted to regular hearing on 09.11.2015 and hearing of this appeal may take some time and evidence of prosecution witnesses and observations of trial Court are still to be re-appreciated and re-evaluated. However, the apparent defects in the impugned judgment cannot be ignored as pointed by learned Counsel for appellants, which goes to the root of the case. Besides this, this Court is cognizant of the fact that while hearing an application under section 426 Cr.P.C, seeking release of the appellant during pendency of the appeal by suspending the sentence, deeper appraisal of the evidence is to be avoided. It will not be out of place to observe that, Appellate Courts discretion to grant bail under section 426, Cr.P.C. is not fettered or restricted by reference either to the conviction or to the sentence passed against the appellants by trial Court, but like all discretion vested in the Courts, the discretion has to be exercised judicially. Reference in this regard can be made to the case of Altaf Hussain Shah v. The State (1986 PCr.LJ 2202) and to the case of Abdul Ghaf far v. Anwar-ul-Hassan (1978 SCMR 149). Similarly in the case of Abdullah Khan v. Karam Dad Khan and another (1986 SCMR 1064), the Hon'ble Supreme Court has held that section 426, Cr.P.C. does not impose any limitation on the powers of the High Court to grant bail to an accused convicted even for the murder. In the case of Faqir Muhammad v. Akbar (1979 SCMR 270), the Hon'ble Supreme Court refused to interfere with the order of the High Court suspending sentence of a convict sentenced to imprisonment for life on the ground that plea of self-defence needed examination. Further reference in this regard can also be made to the case of Haji Mir Aftab v. The State (1979 SCMR 320), Maqsood v. Ali Muhammad and another (1971 SCMR 657), Hazrat Ullah v. The State (1979 PCr.L.J 1104), Magsood Ahmed v. State (2005 YLR 1049 ).
6. Keeping in view the ratio of the judgment s of the Hon'ble Supreme Court as referre d hereinabove, and the defects as noted in the impugned judgment, I am persuaded to suspend the sentences awarded by the learned trial Court to the appellants during pendency of the appeal and enlarge them on bail subject to their furnishing solvent surety in the sum of Rs.100,000 [Rupees One Lac only] each and P.R. bond in the like amount to the satisfaction of the Nazir of this Court. It is clarified that the observations made hereinabove are tentative in nature, whereas, the appeal shall be decided on its own merits and on the basis of evidence available on record.
2. Adjourned to a date in of fice.