1. ' ABDUL QADEER CHAUDHRY, J.---Leave to appeal is sought against the judgment of the High Court dated 9-4-1990 whereby the application for the grant of bail moved by the petitioner was rejected.
2. The facts, in brief, are that the petitioner and five others armed with pistol and dandas attacked Akhtar Mahmood and others on 6-2-1984 and thereby caused the death of Akhtar Mahmood and injuries to Shakeel Asghar, Sarosh, and Mirza PWs. The allegation against the petitioner is that he had fired pistol shots hitting Sarosh, Mirza and Munnawar PWs. The petitioner was admitted to bail by the Sessions Judge which was cancelled by the Supreme Court on 17-3-1987. On 26-5-1987, the trial Court granted bail to the petitioner on the ground of his illness. In another case the petitioner was facing trial on the charge of murder and he was convicted and sentenced to death on four counts. As such, he was taken into custody. Since his arrest on 24-12-1987, the order of his interim bail granted by the trial Court became ineffective. The sentence awarded to the petitioner in case under section 302/109 P.P.C. Was suspended by the High Court. The appeal is still pending for disposal. After the suspension of the sentence, the petitioner moved an application for the grant of bail before the trial Court on medical grounds which was rejected. His application for bail on similar grounds was also dismissed by the High Court on 20-8-1989.
2. ' He then moved the trial Court for grant of bail on the ground that as he has been under detention for a period exceeding two years, he is entitled to bail as of right under proviso (3) to section 497(1)
3. Cr.P.C. The application was rejected by the trial Court holding that he was a previous convict. The learned High Court also rejected the application of the petitioner and confirmed the finding of the trial Judge.
4. ' Learned counsel for the petitioner has submitted that the conviction and the sentence of the petitioner having been suspended by the High Court the petitioner cannot be treated as previous convict. His appeal against conviction is pending in the High Court and further right of appeal before this Court is available to the petitioner. He has relied upon Moundar v. State (1989 SCMR 5) and Abdul Halim v. The State (PLD 1986 Peshawar 92). In Peshawar's case, it 'has been observed as follows:-- "Unless a person was proved to be guilty and he was convicted thereunder and all superior forums kept verdict of conviction intact, it would not be said that person was previous convict."
5. ' This observation cannot be read out of context. In this case, the accused as acquitted of all the charges in previous cases. In view of such fact it was observed that there was no material to show that the accused has been proved to previous convict either in a case of moral turpitude or otherwise. Since there as no previous conviction recorded against the accused, it was held that he could it be termed as hardened criminal. As such bail was granted to the accused under proviso 3 to section 497(1)(b) Cr.P.C. The case of Abdul Hamid does not apply to the facts of the present case. In Moundar's case it was observed that "in interpreting the expression 'hardened', 'desperate', 'dangerous' the Court can take into consideration and indeed in most of cases, it will take into consideration other materials produced by prosecution in order to show that case falls within prohibition contained in 4th proviso". It was also observed that "it appears that learned Judge in the High Court did not fully examine nature of case, facts involved and result thereof before placing reliance on mere factum of registration of case as sufficient for the purpose of the requisite opinion under the 4th proviso to section 497(1) Cr.P.C. In Criminal Appeal No, 9 of 1989, the accused were acquitted under section 249-A Cr.P.C. As no prima facie case was made out. The above decision is also distinguishable and does not apply to the facts of the present case.
6. ' Unless the conviction is set aside, it cannot be urged that mere suspension of sentence would enlarge the benefit of proviso 3 to section 497(1) Cr.P.C. To an accused person. According to proviso fourth, the provision of third proviso to subsection (1) shall not apply to a previously convicted offender or to a person who, in the opinion of the Court, is a hardened, desperate or dangerous criminal. In Moundar's case referred above, it has been held as follows:-- "It is quite plain that the normal rule stipulated in the Third proviso to section 497 was that an under-trial prisoner shall be released after expiry of the respective period, without the trial concluding. The Fourth proviso is in substance an exception to the aforesaid general rule contained in the Third proviso. Before the Court applies the exceptional provisions of the Fourth proviso, it has to form an opinion that the accused was a previous convict or a criminal of one of the categories described therein. The words are "in the opinion of the Court". Such opinion cannot be obviously subjective but must be based upon materials placed before the Court, reasonably supporting the conclusion that the person concerned is a criminal of the classes described. The word `criminal' has not been defined. It will not be proper and indeed would be difficult to define it or give it a specific meaning. However, it is a common word of the English language. According to the Shorter Oxford English Dictionary the word carries several meanings, including the meaning--a person accused of a crime. In the context of the provisions under construction, we feel that the word cannot be construed in the technical sense, namely, that a formal accusation must be made against the person or that he should have been adjudged guilty of a charge in a Court of law. It appears to have been used in the sense of a person who violates the law of the land. The three adjectives qualifying the word "criminal" may also be examined."
7. ' The learned counsel for the petitioner submitted that an appeal it respect of conviction and sentence is pending examination by the High Court; and ' right of appeal is also available to the petitioner before this Court. In the circumstances, the petitioner cannot be held to be a previously convicted offender. The learned counsel has taken the broad view of the matter. A conviction is complete as soon as the person charged has been found guilty by a Court of competent jurisdiction. During the pendency of an appeal, appellate Court may suspend the sentence under section 426, Cr.P.C. So execution of sentence of petitioner is suspended and not his conviction which remains operative till it is set aside by the higher appellate Courts. Pendency of the appeal for decision does not ipso facto mean that the conviction is wiped out. The appellate Court has no authority under section 426 to suspend the conviction. Conviction and sentence connote two different terms. Conviction means proving or finding guilty. Sentence is punishment awarded to a person convicted in criminal trial. Conviction is followed by sentence. It cannot be accepted as principle of law that till matter is finally disposed of by Supreme Court against convicted person, the conviction would be considered as held in abeyance. This interpretation is not in consonance with the spirit of law and against logical coherence. The suspension of sentence is only a concession to an accused under section 426, Cr.P.C. But it does not mean that the conviction is erased. Therefore, in view of the fourth proviso, the third proviso to section 497(1), Cr.P.C. Is not attracted to the case of the petitioner.
8. In view of the above discussion, we do not find any force in this petition. The same is dismissed and leave to appeal is refused.