This is a petition for suspension of sentence in a transportation matter. It is no doubt true that the petitioners are in custody for the last five years and further that this period includes about three years after conviction under section 302, P. P. C. With sentence of transportation for life. It is also correct that their appeal which was ripe and had actually been fixed for hearing on 5-3-1973 was adjourned for no fault on their part ; because their co-accused, Sattar having been arrested was to be proceeded against for the same offence through commitment and trial proceedings. In other words, the reasons for their appeal not being disposed of is an order passed by this Court and thus it is not only a case of absence of fault on their part but also that the Court is responsible for the delay in the hearing of the appeal. However, it cannot be ignored that in every case of delay in hearing of an appeal in the High Court, the Court itself is to a very large extent responsible, if not directly, at least indirectly because of the arrears of work. The argument, therefore, if it is extended to its logical ends, will entitle every convict who has filed an appeal in this Court to be released on bail on ground of delay. But that would not have the effect of an amendment in section 426, Cr. P.
C. which gives a discretion to the Court whether or not to release a person on ground of delay (after his conviction). A similar matter came up before the Supreme Court in Muhammad Aslam and another v. The State (1971 SCMR 511) which was a direct case of prayer of suspension of sentence, of course, after conviction on ground of delay. Their Lordships observed as follows :- "The petitioners have been sentenced to five years' rigorous imprisonment and there is no reason to think that their appeal will not be disposed of much before the expiry of their term of sentence.
We have no reason to doubt that the High Court will give priority to these short sentence cases as, normally, criminal appeals should be disposed of within a year or two."
It was further observed that :- "if the appeal is not disposed of within one year the petitioners will be at liberty to apply again to the High Court."
2. Learned counsel for the petitioners has relied on another ruling of their Lordships of the Supreme Court in Maqsood v. A.I Muhammad and another (1971 SCMR 657) wherein it was observed that "it is now well settled that where a statute itself lays down certain principles for doing some acts they may be taken as a guideline for doing something of the same nature which is in the discretion of the Court." It was also a case of suspension of sentence under section 426, Cr. P. C. And the High'
Court had suspended the sentence of transportation for life on the basis of principles underlying the proviso to subsection (1) of section 497. While dismissing the Petition for Special Leave to Appeal their Lordships made the, above observation. Learned. Counsel has, in this very connection, also relied on The State v. Shah Sawar (1969 SCMR 151and Khalid Saigol v. The State (PLD 1962 SC 495
3. Learned counsel for the State, however, has vehemently argued that the Supreme Court's view expressed in Bahar Khan v. The State (1969SCMR81) has not so far been modified. He has particularly relied upon the following observations :----- "There is no force in the contention that the powers conferred on an appellate Court under section 426 to suspend sentence pending the hearing of an appeal are wider than the power to release on bail under sections 497 and 498 of the Code. A person accused of a non---bailable offence may not be released on bail if there appear reasonable grounds for believing that he has been guilty of an offence punishable with death or transportation for life. A fortiori a person convicted of such an offence would not be entitled to bail under section 426 unless strong ground., are made to appear that conviction is not liable to be sustained,"
4. According to the interpretation by the learned counsel of the above observation, the expression "unless strong grounds are made to appear" connotes that stronger grounds than what are available under section 497 would be required for suspension of sentence under section 426, Cr. P.
C. In answer to the contention of the learned counsel for the petitioner that the case of Shah Sawar cited earlier was decided by the Supreme Court on 18-10-1968 while Bahar Khan's case was decided on 17-10-1968 he states that in the case of Shah Sawar their Lordships were dealing with the conviction, in a bailable offence. The fact remains that in a still later judgment in the case of Maqsood cited above their Lordships categorically held that it was well settled principle that where a statute itself lays down certain principle for doing some acts they may be taken as a guideline for doing something of the same nature which is in the discretion of the Court. Therefore learned counsel for the petitioners still insists that Bahar Khan's case is not attracted to the facts of this case because that case was decided on the question of suspension of sentence on the basis of merits while the question involved in this petition is of delay in hearing of appeal. In this connection he has further relied on Abdul Karim v. The State (1969SCMR312wherein the principles laid down in Khalid Saigol's case and the case of Shah Sawar were reiterated.
4-A. In order to complete the picture in so far as the cases which came-- up before the Supreme Court are concerned, it will not be out of place to refer to Sarwar Khan and another v. State (1969 P Cr. L J 415) wherein their Lordships expressed surprise on a petition for special leave to appeal having been filed for suspension of sentence in case where the conviction was for murder and the sentence was transportation for life. In yet another case Muhammad Ashraf v. The State (1971 SCMR 183) there is a very useful discussion on this subject.
5. After hearing all the learned counsel I do not agree with the contention raised by the learned counsel for the State that the provision of section 497, Cr. P. C. Would not be helpful as one of the guidelines for deciding application under section 426, Cr. P. C. It is now well settled practice of this Court that in cases which are covered by subsection (1) of section 497 bail can be allowed on ground of inordinate delay., On principle therefore there is no bar to the grant of suspension of sentence in this case as there has been and is likely to be a delay in the disposal of the appeal for ,which it cannot be held that the petitioners are at fault. But at the same time I am of the view that in cases under section 497 which fall within the prohibition contained in subsection (1) thereof and are covered by the rule 4 of `inordinate delay', it is always discretionary for the Court, in circumstances of each case, to allow or withhold bail. Likewise the facts and circumstances, of each case will have to be considered while deciding the question whether pending an appeal or revision sentence should be suspended on ground of delay.
6. In this case it cannot be ignored that all the petitioners allegedly absconded for some time ranging from 15 days to three months. It has also to be noticed that there was an allegation of unlawful assembly and the .Present petitioners have also been convicted under section 148, P. P. C.
In this background it has to be noticed that Abdul Sattar, co-accused of the petitioner also absconded for more than four years and it is due to him that the hearing of the appeal has been postponed. It does not appear to be a mere coincidence that all these persons including Sattar, who allegedly formed an unlawful assembly with a common object purpose absconded at one or the other time. Learned counsel for the State has made a statement to the effect that after my order dated 5-3-1973 and in pursuance of the directions contained therein the commitment proceedings against Sattar accused have already been completed and he has been committed to Sessions Court for trial. Learned counsel has also pointed out that the learned Sessions. Judge has been asked by Court to treat the case of Sattar as an exceptional one for disposal and to give it preference over others. In these circumstances learned counsel explains that every effort is being made to conclude the proceedings against Abdul Sattar within shortest possible time. Together with all this I am not unmindful of the fact that on consideration of the merits a Division Bench of this Court had earlier refused to suspend the sentence in this case.
7. Taking note of all these circumstances I do not consider it a fit case for exercise of discretion in favour of the petitioners arid accordingly dismiss this petition.