Since both these applications filed under section 426, Cr.P.C. For the suspension of sentence and release of appellants on bail have arisen out of the same judgment, they are being disposed of by a consolidated order.
2. Appellants Ali Asghar (Criminal Appeal No.9 of 1991), and Muhammad Ashfaque (Criminal Appeal No.10 of 1991) were tried by learned 1st Additional Sessions Judge (Central) Karachi, alongwith two others for the offence under section 489(c), P.P.C. Who found them guilty and sentenced each of them to suffer R.I. For four years and to pay a fine of Rs.1,00,000 (Rupees one lac only) or in default to suffer R.I. For six months. The convicts were, however, extended the benefit of section 382-B, Cr.P.C. The appeals filed by the above appellants were admitted to regular hearing. During the pendency of their appeals, the appellants applied for suspension of their sentence and release on bail.
3. I have heard the learned counsel for the appellants and Mr. Shaukat H. Zubaidi, learned A.A.-G.
For State. The learned A.A.-G. Has raised a preliminary objection about the competency of these applications by stating that in view of the rule laid down by the Honourable Supreme Court in the case of Ahmad Khan v. Karam Elahi and 2 others reported in PLD 1987 SC 418, these applications could not be granted unless the period of one year as specified in clause (b) of subsection (1-A) of section 426, P.P.C. Had elapsed.
4. Section 4,26, Cr.P.C. As it stood prior to the Enforcement of Law Reforms Ordinance, 1972, empowered the Appellate Court for reasons to be recorded in writing, to suspend execution of sentence pending appeal, and if the convict was in confinement, to order his release on bail or on his own bond. The legislature not having defined the circumstances under which such order could be passed no hard and fast rule could be laid down circumscribing its limits. The delay in disposal of appeal coupled with other circumstances, such as, `short sentence' was also considered as a ground for suspension of sentence, but since various Courts took different view on the question as to what was a `short sentence' for the purpose of suspension of sentence of a convict, the legislature in its wisdom made this ground certain by adding subsection (1-A) to section 426, Cr.P.C. Through Law Reforms Ordinance, 1972, in the following words: "(1-A) An Appellate Court shall, unless for reason 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 not 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."
5. This newly-added provision of law sets at rests the controversy appearing in various decisions of the superior Courts as to the extent of delay in disposal of criminal appeals entitling the convict to the grant of bail. Like third proviso to subsection (1) of section 497, Cr.P.C. This legislative intervention cannot be given a restricted meaning and there should not be legal bar for a convict to apply for suspension of his sentence on merits under subsection (1) of section 426, Cr.P.C., even if the period specified in subsection (1-A) of section 426, Cr.P.C. Has not elapsed. Speaking broadly, the case of Ahmed Khan v. Karam Elahi and 2 others, referred by Mr. Shaukar H. Zubaidi, learned A.A.-G. Appears to me to create no difficulty I think the dictum of the Honourable Supreme Court, subjected to a careful analysis will be found to be perfectly correct, but on the limited point of delay in disposal of appeal, which is clear from the following extract:-- "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."
6. The right of a convict for suspension of sentence under subsection (1) of section 426, Cr.P.C.
Remains intact and is not effected by subsection (1-A) of section 426, Cr.P.C. The case of Ahmad v The State reported in 1990 P Cr. L J 551, is clear on this point, which says: "There is no legal bar for a convict to apply for suspension of order of sentence even if the period specified under section 426(1-A), Cr.P.C. Has not expired. His right to move the Court for suspension of order of sentence is provided in subsection (1) of section 426 and it is not affected by subsection (1-A) of the said section."
7. In the case of Sattu Khan v. The State reported in 1988 SCMR 241, their Lordships of the Supreme Court were pleased to suspend the conviction of the petitioner under section 426, Cr.P.C., who was convicted on a murder charge. The cases of Naukar Hussain v The State reported in 1987 P Cr. L J 508, Shamshad Ali v. The State reported in 19&g P Cr. L J 2078, Muhammad Sadiq v. The State reported in 1990 P Cr. L J 552, Sardar alias Sardara v The State reported in 199() P Cr. L J 557 and Bashir Ahmad and others v. The State reported in 1990 P Cr. L J 581, also lend support to the above view.
8. On merits the appellants have got good case. One of the Mashirs of the recovery has not supported the case of the prosecution and the other is admittedly facing a case in which powder of heroin was recovered from his possession. There are, therefore, strong grounds to show that the conviction of the appellants is not well-founded. The offence for which the appellants were convicted is again bailable.
9. Having regard to the above circumstances, I am inclined to allow the applications made under section 426, Cr.P.C. The appellants shall be released on bail in the sum of Rs.50,000 each with P.R.
Bond of the like amount to the satisfaction of Nazir of this Court.
10. By a short order, dated 6-2-1991 I had allowed these applications. These are reasons for the said orders.