RAJA SHAKEEL AHM AD, J. Through this Cr. Misc. No. 140/2023 under section 426, Cr.P.C, the petitioners/convict/appellants seek suspension of the sentence on the statutory ground i.e. non- disposal their appeal within stipulated time mentioned in section 25 of ATA, 1997 read with section 426, Cr.P.C. The learned Judge of ATC-1 Gilgit, vide its judgment dated 04/01/2021 has convicted the above named petitioners along with others and petitioners/convicts were convicted under section 13(D) Arms Ordinance, 1965 and they were sentenced to a rigorous imprisonment for seven years beside a sentences of 02 years RI and 03 years RI, under Ss.147 and 148, P.P.C. respectively. Learned trial court while passing different sentences has extended benefit of S. 382(B), Cr.P.C. to the petitioners/convicts.
2. The petitioners have filed appeal before this Court on 10/11/2021 and same pending subjudice before this court from the date of institution. The learned Counsel for the petitioners has pointed out that, under section 25 of ATA an appeal filed before the High Court, should have to be decided within fifteen days and under section 426(1-A) (b) any appeal of convicted person who has been sentenced to imprisonment for a period of exceeding three years but not exceeding seven years and whose appeal has not been decided within a period of one year of his conviction, shall become entitled for bail under section 426, Cr.P.C. The learned counsel further submitted that, it is now almost four years elapsed after filling of their appeal but the same is not finally disposed of. As such on the basis of above mandatory provisions of law a statutory right has accrued to the petitioners as such they are entitled for the relief.
3. Conversely, the Deputy Advocate General Mr. Mahmood Kamal Afandi, assisted by Mr. Imtiaz Hussain advocate counsel for the complainant objected and submitted that, petitioners had been tried under a special law and they have questioned the judgment of conviction recorded against them under the special enactment therefore, they cannot take advantage of the provisions of common law. They submitted that in the special enactment no such provision like Section 426, Cr.P.C. is available and according to section 25 of the Special Act 1997, during pendency of appeal, before appellate forum the convict cannot be released on bail as per the analogy of section 426, Cr.P.C. They submitted that Act, 1997 is special law and same has an overriding effect over the common law, as such the petition in hand is not tenable therefore, same may be dismissed.
4. Arguments heard and record perused. On the factual side it is on record admitted that Criminal Appeal No. 36/2021 is still sub-judice before this court after lapse of more than three years.
Petitioners are in judicial lock up for the last more than four years. The question for judicial consideration in this petition is that, whether an appeal filed under the special enactment if not decided within fifteen days, will it give any right to the convict for his release on bail?
After a careful perusal of section 32 of the Anti-Terrorism Act, 1997, we are of the considered view that, no doubt Acts 1997 has given an overriding effect over the common law and any other law, but this overriding effect is not absolute. Sub-section (1) of section 32 of the Act reads as follows:-
32. Overriding effect of Act.(1) The provisions of this Act shall have effect notwithstanding anything contained in the Code or any the law but, save as expressly provided in this Act, the provisions of the Code shall, in so far as they are not inconsistent with the provisions of this Act, apply to the proceedings before an Anti-Terrorism Court, and for the purpose of the said provisions of the Code, an Anti-Terrorism Court shall be to be a Court of Sessions."
Keeping the above in view, it is evident that provisions of the Code 1898 shall be applied in the cases tried under the special enactment and the only prohibition in this regard is the conflict or inconsistency. In case of conflict the provisions of special enactment shall be followed.
Section 25(5) of the Act, 1997, directs that appeal to be decided within seven days and subsection
(8) of the said provision prohibits that during pendency of the appeal, the convict shall not be released. On this particular provision, we are of the opinion that during pendency of the appeal within the said seven days the convict shall not be released on bail. Section 25 of the Act, 1997 does not give any answer that if the appeal is not decided within seven days what would be the result of the same or if the appeal could not be decided for default of the complainant, the convict will be left unattended. Record in the main appeal shows that appeal was adjourned on the request of rival parties and the learned DAG and sometimes the appeal was adjourned due to strike of the members of the Bar Association. Secondly the provisions of section 25 of the Act, 1997 and section 426, Cr.P.C. are not inconsistent with each other. No doubt appeal of a convict who is serving out the sentence of imprisonment should be decided within shortest possible time, but if the same is delayed for any reason beyond the control of the parties, Court should not left the matter unattended.
5. In the instant case, the appellants/convict petitioners are behind the bars since their arrest i.e. from the year 2020, and their appeal is pending before this court since 10/11/2021, without any fault on their part. The appellants/petitioners have been convicted for a period of 7 years with the benefit of section 382(B), Cr.P.C. and they have already served out major portion of their imprisonment. Appeal of appellant/convicts/petitioners is not likely be fixed in the near future for the reason of summer vacations. Since the major portion of sentence awarded to the petitioners has been elapsed and statutory right of bail as envisaged in section 426 Cr.P.C already accrued to the petitioner/appellant as such other merits of the case need not to be discussed.
6. The upshot of the above discussion is that, in view of the facts and law involved in the matter we accept this petition filed by the appellants/petitioners under section 426, Cr.P.C and suspend sentence awarded to the extent of present Appellants/petitioners by the learned Judge ATC-1 Gilgit in Para 63 of Judgment dated 04/11/2021. The appellants/petitioners shall be released on bail forthwith if not required in any other case subject to their furnishing bail bonds amounting 500,000/- (Five Lac) each of them, with two solvent local sureties each in the like amount to the satisfaction of Deputy Registrar Judicial of this Court. Petitioners/appellants shall appear before this court in each and every date of hearing till the final decision of main Appeal No No.36/2021. The instant Cr. Misc No. 140/2023 is decided and disposed of accordingly. Attested copy of this judgment be placed in Cr. Appeal No. 36/2023. File