AZIM RIAZ HUSSAIN J.--The petitioner seeks leave to appeal against the orde of the High Court dated 11-1-1987, granting bail to Karam Elahi, Muhammad Aziz and Sultan Sikandar respondents.
2. Facts giving rise to the petition are, briefly, that the three respondents were tried along with 5 others for the murder of Muhammad Aslam and making a murderous assault on 4 other persons.
The learned trial Court convicted two of the co-accused namely Muhammad Iqbal and Muhammad Sarfraz under section 302, P.P.C. And sentenced them to imprisonment for life while it convicted three respondent (i.e. The present petitioners) under section 307, P.P.C. And sentenced each of them to 5 years' W.I. It convicted the remaining three co-accused, namely Ghulam Haider, Sultan Khan and Sher Ali under sections 323 and 325, P.P.C. And sentenced them thereunder to one year's R.I. Each under section 323, P.P.C. And 2 years' R.I. Each under section 325, P.P.C.
All the 8 convicts-accused have filed an appeal before the High Court. Five of these including the 3 respondents, also applied for suspension of their sentences under section 426, Cr.P.C.
The matter came up for hearing before a learned Single Judge of the High Court on 14-10-1986 and bail was granted to three of the applicants namely Ghulam Haider, Sultan Khan and Sher Ali who had been convicted a/ss 323 and 325, P.P.C., on the ground that their sentences (1 year and 2 years each) were short, while it refrained from granting bail to the 3 respondents, namely Karam Elahi, Sultan Sikandar and Muhammad Aziz, to consider the matter further after the receipt of the record.
The relevant portion of the order dated 14-10-1986 reads as follows:- "Since the sentences are short. Their operation is suspended and the petitioners named above are admitted to bail in the sum of Rs.15,000 each with two sureties each in the like amount to the satisfaction of A . C . Chakwal.
However, the plea for the suspension of sentence of Karam Elahi, Muhammad Aziz and Sultan Sikandar petitioners shall be considered after the receipt of the record as already directed."
3.After record was received, the aforementioned application under section 426, Cr.P.C. Was reheard with respect to the three respondents, whose case had been kept pending for being considered after going through the record and the learned Single Judge after considering the matter also granted bail to them vide the impugned order. The relevant portion of that order reads as follows:-
2. Learned counsel for the petitioner states that the trig: Court gave finding to the effect that it was a case of individual liability. Since the sentence is short, I suspend its operation and admit the petitioners to bail in the sum of Rs.15,000 each with two sureties each in the like amount to the satisfaction of A.C., Chakwal."
4.Learned counsel for Ahmad Khan complainant submitted that it is surprising that on the first hearing of the respondents, application under section 426, Cr.P.C., the learned Single Judge granted bar to three of their co-accused on the ground that their sentences were 'short' (i.e. One year's R.I. And 2 years' R.I. Each, u/ss 323 and 325, P.P.C. Respectively), but kept the cases of the three respondent. Pending for further consideration after receipt of the record. The counsel urged that it was obvious that at that time the learned Single Judge did not consider the sentence of 5 years' R.I. Under section 307, P.P.C., to be 'short' and had, therefore, kept the matter pending to consider whether or 'not bail could be allowed to the respondents on ground other than the length of sentence awarded to them. But surprisingly when the matter was reheard on 11-1-1987, he released the respondents on bail on the same ground i.e. That "there sentences are short".
He pointed out further that before the Law Reforms Act, 1972 bail was sometime granted to persons convicted of an offence because they had been sentenced to imprisonment for a short period and their appeal had been pending disposal for a considerable time. But since various Courts took radically different view on the question as to what was a 'short sentence' for the purpose of suspension of sentence of a convicted-accused and bail was sometime granted to the persons whose appeal had been pending only for 9 months, but in some other cases even lapse of 3 or more years in fixation of the appeal by convicts while they were rottening in jail, was not considered a sufficient ground for releasing them on bail. The counsel submitted further that it was for this reason that the legislature felt the need to end the confusion by amending section 426, Cr.P.C., inter alia, by adding subsection (1-A) thereof which reads as follows:- 426.-(1-A): An Appellate Court shall, unless for reasons to be recorded in writing it otherwise directs, order a convicted person to be released on bail who has been sentenced:- (a)to imprisonment for a period and exceeding 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 but not exceeding seven years and whose appeal has not been decided within a period of one year of his conviction; (c)to imprisonment for life or imprisonment exceeding seven years and whose appeal has not been decided within a period of two years of his conviction."
The counsel then urged that the three respondents in the present case who had been convicted to 5 years' R.I. Under S. 307, P.P.C. Could not have been granted bail under section 426, Cr.P.C. On the ground of 'short sentence' unless the period (i.e. 1 year) specified in clause (b) of subsection (1-A) had lapsed, and appeal had not yet been fixed for hearing.
6. We feel there is weight in the above-noted contentions and the three respondents were not entitled to grant of bail under section 426, Cr.P.C. On the ground that their sentences were short. But considering that they would become entitled to be released on bail under that clause within a few days from now i.e. On 19-7-1987 (by which date one year's period would have passed), we would not like to interfere with the order passed by the High Court in this case and even if their bail is cancelled and they are arrested and sent back to jail, they would again become entitled to be released on bail within a few days.
As such leave is refused in this case.