MUHAMMAD YOUNAS TAHIR, J. The captioned appeal has been directed against the judgment of the Shariat Appellate Bench of the High Court, dated 31.12.2018, passed in Criminal Misc. No.79 of 2018.
2. The brief facts forming background of the instant appeal are that convict-respondent No.1, herein, was tried in offences under sections 302, 109, A.P.C., before the District Criminal Court Bhimber. The learned trial Court after completion of the trial by convicting him awarded the life imprisonment under sections 302/109, A.P.C., vide its judgment dated 05.10.2015. Feeling aggrieved of the judgment of the District Criminal Court, convict-respondent No.1, herein, filed an appeal before the learned Shariat Appellate Bench of the High Court. The appeal was pending before the Shariat Appellate Bench of the High Court, meanwhile convict-respondent No.1, herein, filed the bail application under section 426 (1-A)(c), Cr.P.C., before the learned. Shariat Appellate Bench of the High Court. The learned Shariat Appellate Bench of the High Court after hearing arguments advanced by the learned counsel for the parties accepted the application filed by convict- respondent No.1, herein, and suspended the impugned judgment of the learned trial Court and released him on bail vide order dated 31.12.2018 The appellant, herein, feeling aggrieved from the impugned order, has challenged the same through instant appeal.
3. Raja Inamullah Khan, Advocate, the learned counsel for the appellants, strenuously argued that the impugned order of the learned Shariat Appellate Bench of the High Court is patently illegal, against law, record and the facts of the case. He further submitted that convict-respondent No.1, herein, played an important role in the alleged occurrence and prosecution also attributed a specific role to him. He further submitted that respondent No. 1, herein, is a mastermind of the alleged occurrence. He further argued that respondent No.1, herein, is a habitual criminal and also previously convicted. He further contended that the trial Court after completing the trial, awarded the sentence of life imprisonment to respondent No 1, herein, therefore, he was not entitled to get the concession of bail at such an early stage. According to the learned counsel respondent No.1, herein, is a hardened, desperate and dangerous criminal, who was also previously convicted in many criminal cases. The learned counsel further submitted that the learned Shariat Appellate Bench of the High Court failed to account into consideration previously conviction record of respondent No.1, herein, while passing the impugned judgment. The Appellants prosecution presented sufficient proof regarding conviction of respondent No.1, herein, but the Court below did not appreciate all the documentary proof in its true prospective and released the convict- respondent No.1, herein, by suspending the impugned judgment. The learned counsel relied on case reported as Muhammad Aziz v. The State 2000 SCR 01, Ch. Muhammad Riasat and another v. Muhammad Asghar and another 2010 SCR 01 and Omair Ahmed Siddique v. The State 1996 PCr.LJ (Karachi)
22. He lastly requested for acceptance of this appeal and quashing of the impugned order dated 31.12.2018.
4. While controverting the arguments, Mr. Abdul Majeed Mallick, Advocate, the learned counsel representing the respondent strongly supported the impugned order and argued that the impugned order passed by the learned Shariat Appellate Bench of the High Court is perfect, in accordance with law and record and warranted no interference by the Apex Court. He further submitted that respondent No.1, herein, through an appeal challenged the legality and prosperity of the judgment of the learned trial Court in respect of conviction, which is awaiting disposal. Even otherwise according to the learned counsel no overt act in the alleged incident of triple murder was ascribed to respondent No.1, herein, therefore, the impugned order is liable to be maintained.
The learned counsel further contended that at the time of alleged occurrence, respondent No.1, herein, was abroad/out of country about six months prior to the alleged occurrence. According to the learned counsel only telephone calls have been ascribed to the respondent No.1, herein, to make the conspiracy to implicit the respondent No.1, herein, with the alleged incident/offences. The learned counsel again contended that the case of respondent No.1, herein, was very much comes within the purview of amended provisions of section 426(1-A)(c), Cr.P.C., which entitled respondent No.1, herein, to get concession of bail. The learned counsel strenuously converted the arguments raised by the learned counsel for the appellants, that respondent No.1, herein, is hardened, desperate, dangerous criminal nor he is previous convict. According to the learned counsel only role of abetment is ascribed to the respondent No.1, herein. Lastly the learned counsel submitted that the impugned order passed by the learned Shariat Appellate Bench of the High Court is quite in accordance with law, holding the field and based on cogent and solid reasoning and Court below rightly extended the concession of bail to respondent No.1, herein. The learned counsel relied upon the case reported Jehanzeb v. The State through Advocate General and 4 others [2014 SCR 751].
5. Raja Saadat Ali Kiani, Additional Advocate General representing the State adopted the arguments advanced by the learned counsel for the appellants and requested that concession extended to respondent No.1, herein, may be recalled and for quashment of the impugned order.
6. We have considered the arguments advanced by the learned counsel for the parties as well as the learned Additional Advocate General and perused the record and the impugned order of the learned Shariat Appellate Bench of the High Court with utmost care.
7. The proposition before us is whether the impugned order, through which, the convict respondent, herein, was released on bail and while exercising powers under section 426(1-A)(c), Cr.P.C. is justifiable or not. Keeping in view the powers given under above mentioned provision of law first of all, we deem it proper to proceed to the relevant provision of law, which earned statutory rights to the convict respondent, herein, for suspension of sentence under section 426(1-A)(c), Cr.P.C. The main purpose of the above mentioned section at first is to ascertain whether delay in deciding of the appeal is occasioned by act or omission of convict or any other person on his behalf. As far as condition laid down in the relevant clause, therefore, for better appreciation we would like to examine section 426, Cr.P.C., which speaks as under:- "426. Suspension of sentence pending appeal, release of appellate on bail.---(1) Pending any appeal by a convicted person, the Appellate Court may, for reasons to be recorded by it in writing, order that the execution of the sentence or order appealed against be suspended and, also, if he is in confinement, that he be released on bail or on his own bond.
(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) Imprisonment for a period not exceeding three years and whose appeal has not been decided within a period of six months of his conviction;
(b) imprisonment for a period exceeding three years, but not exceeding seven years and whose appeal has not been decided within a period of one year of his conviction; or
(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 offended 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.
2. ........
(2-A)
3. .......
A cursory reading of the above provision of law, reveals that a convict-appellant earns a statutory right for suspension of sentence and grant of bail in his favour under section 426(1-A)(c) of the Code of Criminal Procedure, 1898, when the delay in making the disposal of the appeal by the appellate Court is not occasioned by an act or omission of appellant or any other person acting on his behalf. Furthermore, as per conditions laid down in the proviso to the above section, he should not be previously convicted 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. In the instant case, we have thoroughly examined the record but such like eventuality is not available in the light of existing record even the record reveals that the appeal of the convict- respondent, No.1, herein, filed against his conviction by the District Criminal Court Bhimber, was not decided within period of two .years. The delay in non-disposal of the appeal, entitled the convict- appellant, to file the application for suspension of sentence. If the appellate Court comes to the conclusion that the convict person, who has filed an application for suspension of sentence on the ground of statutory period is a hardened, desperate or dangerous criminal and has acted in a desperate manner his application for suspension of sentence bail can be refused. In the present case, convict respondent No.1, herein, filed an appeal on 19.10.2015, whereby he challenged the order of the learned trial Court dated 05.10.2015. According to the record available his appeal remained pending for hearing by the Shariat Appellate Bench of the High Court, for three years. He filed the Criminal Misc. Application for suspension of his sentence before the learned Shariat Appellant Bench of the High Court on 11.10.2018. The appeal of the convict respondent, herein, is still a waiting for it final disposal since around five years. The interlocutory orders recorded by the registry branch of the learned Shariat Appellate Bench of the High Court very much transpire that in disposal of the appeal no delay whatsoever was caused by the convict respondent No.1, herein, or his counsel. The points raised by the learned counsel for convict-respondent No.1, herein, are worth consideration because when convict respondent No.1 appeal before the Shariat Appellate Bench of the High Court was not decided within the prescribed period as postulated in the above mentioned provision of law, then no option was left for the appellate Court to suspend the sentence. Now the question emerges whether any delay was occasioned by an act or omission on behalf of convict respondent No.1, herein, or any other person on his behalf. The record reveals that no such like eventuality has ever arisen in the present case as we have discussed above. It also to be noted that roll attributed to convict-respondent No.1, herein, is of only abetment and he remained behind the bars from 25.04.2013. Thus, keeping in view the contention raised by the learned counsel for convict-respondent No.1, herein, and record made available, in our estimation, therefore, the case of the convict-respondent No.1, herein, falls within the purview of clause (c) of section 426(1-A), Cr.P.C. and the learned Shariat Appellate Bench of the High Court has very much rightly suspended the sentence awarded to the convict-respondent No.1, herein, in the given circumstances. Our this view finds support from the case reported as Muhammad Bilal v. The State and another [2008 SCR 100], the relevant captioned of the above mentioned case is as under:- "6.....it is pertinent to note that this Court shall not embark upon the merits of the case at this stage and shall not indulge into the meticulous appreciation of evidence. While considering the application for suspension of sentence, the Court has to consider the quantum of sentence and time likely to be taken in the decision of appeal. The trial Court held that the appellant was found physically present at the place of occurrence. It seems that the appreciation of evidence conducted by the trial Court and conviction recorded requires serious examination. Wherever the Court finds that the conviction recorded and the appreciation of evidence conducted by the trial Court requires serious examination, then the sentence is suspended by the Court and the applicants are released on bail."
The same view was also taken into consideration in another judgment of this Court reported as Habib ur Rehman Chaughataie v. Habib-ur-Rehman and another [2013 SCR 1212], wherein this Court held as under:- "After going through the above said provisions, it can safely be said that until anything is brought on record to the contrary, the benefit of subsection 1-A(c) cannot be withheld from a convicted person whose appeal has not been heard according to the classifications given in clauses (a), (b) and (c) of subsection (1-A) of section 426; Cr.P.C. The record reveals that the appeal of the convict- respondent has not been decided within a period of two years, therefore, he earned right to move the appellate Court for the suspension of his sentence. However, this right is not absolute and mandatory in nature. In the appropriate cases, if the appellate Court comes to the conclusion that the person who is seeking bail under the above said provisions is a hardened, desperate or dangerous criminal and has acted in a desperate manner that can be refused."
8. Now we take up the other contention of the learned counsel for the appellant, herein, that the convict-respondent No.1 is hardened, desperate or dangerous criminal. In this regard the learned counsel for the appellant was confronted, whether, when the alleged occurrence took place, the convict-respondent No.1, herein, was present at spot or within country and make conspiracy for commission of alleged offence/ occurrence with the co-convicted accused, the learned counsel for the appellant open-heartedly admitted this fact that the convict-respondent No.1, herein, at the time of occurrence, was abroad and not present at the spot or in the country. However, he emphasized that the convict-respondent made the telephonic calls from the abroad and hatched the conspiracy to commit the occurrence, which resulted into murder of three innocent persons.
9. Thus in the light of what, has been stated by the learned counsel for the appellant, it can safely observed that convict-respondent No.1, herein, was not present in the country and was also not present at the spot when the alleged incident took place. Thus, keeping in view the above averments made by the learned counsel for the appellants, we reached on the conclusion that at the stage of extending benefit under section 426(1-A)(c), Cr.P.C. it cannot be said that convict- respondent No.1, herein, is not entitled the bail by declaring hardened, desperate or dangerous criminal, therefore, in given circumstances the roll ascribed to the convict-respondent No.1, herein, to the effect that Whether he hatched conspiracy for commission of murder can be looked into by the learned first appellate Court while deciding the main appeal pending before it, because this contention touches merits of the case, thus not warranted under law to make any opinion in this regard, because such like opinion may prejudice the case of either party.
10. Before parting with we deem it proper to mention here that the first appellate Court shall not be influenced by any finding made by us in this judgment and decide the main appeal on its own merits strictly in accordance with law.
In the light of what has been discussed above, we are of the opinion that no illegality has been committed by the learned Shariat Appellate Bench of the High Court, while passing the impugned order and releasing the convict-respondent No.1, herein, on bail under section 426, Cr.P.C. Finding no force in this appeal, same is hereby dismissed.