MUHAMMAD SHERAZ KIANI, J.---- This is an application for suspension of sentence and bail filed under section 426 1-A,(C), Cr.P.C. The convict-applicants seeking suspension of sentence awar ded to them by District Court of Criminal Jurisdiction Kotli through the judgment dated 28.02.2018.
2. Precise facts forming background of the instant application are that the convict-applicants/appellants were tried in offences under sections 302, 341, 201, 204, 109, 34, A.P.C. 17(4), E.H.A. and 13/20/65,AA before District Court of Criminal Jurisdiction Kotli. The learned trial Court after due process of aw convicted the appellants/applicants and awarded life imprisonment (25/25 years R.I) under section 302, A.P.C., 10/10 years R.I under section 394, A.P.C. along with fine of Rs.10/10 thousand, in default of payment of fine, they shall undergo further 4/4 months S.I, under section 341, A.P.C. for 1/1 month S.I. The Convict-applicants have further been sentenced for 2/2 years imprisonment in offence under section 13 of Arms Act, 1965 and they were also ordered to pay Rs.10/10 lacs as compensation under section 544/A, Cr.P.C to the legal heirs of deceased. The convictappellants/applicants were also given the benefit of section 382(B), Cr.P.0 and were acquitted of the charge under sections 109, 201, 204, A.P.C. vide its judgment dated 28.02.2018. Feeling aggrieved and dissatisfied with the aforesaid judgment, the convict-applicants/appellants have challenged the same before this Court through the instant appeal. Now they are seeking suspension of sentence through the instant application.
3. We have heard the learned counsel for the parties and gone through the contents of application, impugned judgment and available record with utmost care.
4. It is a settled principle of law that in granting bail or suspending the sentence awarded to a convict the Court is lot required to express opinion as to under what provision of law the convict would likely be found guilty or whether the case does not come within the scope of a particular section. No doubt that the appellate Court has been given the power to suspend the sentence of convict, but the same is to be exercised with due care and caution and satisfactory and cogent reason are required to be advanced for suspending the sentence.
5. The learned counsel for the convict-petitioners submitted that in the light of amended provisions of section 426, Cr.P.C. convict-petitioners are entitled to be released on bail, as statutory period of two years has elapsed and there is nothing on record which may show that delay in conclusion of appeal has been occasioned due to any act of the convict-petitioners or their counsel. For having true perception, we would like to reproduce amended section 426, Act V of 1898, which reads as under ,- Section 426, Cr .P.C.........................................
"(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) to imprisonment for a period not excee ding three years and whose appeal has not been decided within a period of six months of his conviction.
(b) to imprisonment for a period exceeding three years not exceeding seven years and whose appeal has not been decided within a period of one years of this conviction; or
(c) imprisonment for life or imprisonment exceeding seven years and whose appea l 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 hardened, desperate or dangerous criminal or is accused of an act of terrorism punishable with death or imprisonment for life."
(Underlining is our)
A plain reading of the above provision of law, reveals that a convict-appellant earns a statutory right for suspension of sentence and bail under section 426(1-A)(c) of the Code of Criminal Procedure, 1898, when the delay in the decision of the appeal is not occasioned by an act or omission of appellant or any other person acts on his behalf.
Furthermore, as per conditions laid down in the proviso to the above section, he should not be previously convicted offender or a person who in the opinion of the Court is hardened, desperate or dangerous criminal or is accused of an act of terrorism punishable with death or imprisonment for life.
6. A perusal of the record reveals that although a period of more than two years has expired and the appeal has not been decided so far without any fault of the convict-petitioner; but, the second question arises, whether the convict- applicants come within the definition of hardened, desperate and dangerous criminals or not? It is alleged by the prosecution and held by the Court below that Muhammad Usman, convict applicant, shot two fires at the deceased, one hit him at the head, second at ribs of the deceased, which passed through his abdomen and hit the other convict-petitioner , whereas convict-applicant, Inzamam also fired at the deceased which hit him at his shoulder .
The convict-applicants have been found guilty by the Court below for forcibly taking a bag from the deceased, wherein, cash (money) and some other documents were present. Furthermore, during investigation and evidence discussed in the impugned judgment, it was found that both the convicts made premeditation for the purpose of robbery and waited for the deceased to appear at the place of occurrence. Both were armed with 30-bore, pistols shot repeated fires, in order to take the life of the deceased, so these brutal acts of the convict-applicants disentitle them from concession of bail on statutory ground and they appears to be desperate and dangerous criminals. Our this view finds support from a case titled "Muhammad Shahbaz v. The State and others " [2013 PCr.LJ 45], wherein the Lahore High Court in the similar case held as under;- "In the instant case, the petitioner along with his co-accused muffled faces tried to rob a motorcycle from the complainant party and bring the scuffle when his face was disclosed he immediately started straight firing resulting into murder of Jameel Ahmed attracting the sentences under sections 392/302," P.P.C. Although petitioner is juvenile gender but he is involved in a heinous offence of robbery and causing murder . Alleged act of the petitioner prima facie render him a 'desperate' criminal not entitled to concession of release on bail through suspension of sentence. Petitioner's plea for suspension of sentence is hit by the exception manifested in the first proviso of section 426(1-A)(C), Cr.P.C. Petitioner , therefore, has no case for suspension of sentence on the ground of statutory delay in the decision of the appeal."
7. It may be stated here that deeper appreciation is not permissible at this stage. Only were judgment of the Court below suffers infirmities and there would be no evidence to determine the guilt of the accused or any other illegality if floats on the surface of record, only then, discretion can be exercised in favour of a convict. Powers conferred on an Appellate Court under section 426, Cr.P.C., to suspend sentence, pending the hearing of an appeal are not wider than the powers to release on bail under sections 497 and 498, of the Code. The learned counsel for the petitioners could not point out any such infirmity in the impugned judgment. Merely conviction of an accused on circumstantial evidence does not make out a case for suspension of sentence when awarded by a competent Court of law after full trial of the case, provided the same rings true and connect all the events in a chain. It is further observed that circumstantial evidence is as good as any other evidence if the same is cogent and confidence inspiring. Obviously deeper appreciation and scrutiny of evidence is not warranted at this bail stage which will be done at the time of decision of the main appeal, but on the face of it, the impugned judgment seems to be based upon evidence and the convict-applicants prima facie, appear to be connected with the offence they were punished for. Nothing has been pointed out which may create a serious doubt on the face of the record. A conviction without any evidence and conviction on the basis of circumstantial evidence are of dif ferent consequences.
In the light of what has been stated above, finding no force in this application, it is hereby dismissed.
A copy of this order shall be annexed with the original appeal.