1. SALEEM AKHTAR, J.---This appeal with the leave of this Court impugnes the order passed by the High Court, suspending the sentence of Respondent No.l, and granting him bail under section 426, Cr.P.C.
2. The brief facts are that one Bashir Ahmed, lodged the First Information Report alleging that on 7-10- 1988 at about 4.00 P.M., the informant, Ismail, Siddique, Rafique, Iqbal, Sharif, Fateh Muhammad, Rehmat Ali and Rashid collected at the house of Abdur Rehman in connection with the fixation of date of marriage of the brother of Abdur Rehman. They were waiting for Abdur Rehman, when at about 5.15 p.m. They heard cries of Latif and they all rushed out. They saw Anwar, Iqbal, Ghulam Farid, Niamat Ali, Muhammad Ali and Zulfiqar, all with guns, revolver and Sotas, encircling Latif.
3. Anwar raised Lalkara to take revenge for the insult inflicted on him and hit a Sota below on the head of Latif. They tried to rescue Latif but Ghulam Farid fired at Siddique while Niamat Ali fired at'
4. Ismail, who died there. Thereafter the accused assaulted other PWs. The accused including Respondent No.l were challaned under sections 148, 302/149 and 307/149, P.P.C. Respondent No.l, pleaded that he had been falsely involved at the instance of Saeed and Iqbal Tikka, Ex-Adviser of Chief Minister of Punjab, due to party rivalry. He pleaded that on the day of incident, he and Niamat Ali, accused, had escorted Mohammad Ali and his family to his village Kotri at 1100 a.m. On a Tractor Trolly. On his way back, due to the defect in the Tractor, 'they reached late at about 12 mid- night. Although the D.S.P. Had declared him innocent, he was prosecuted. The learned Trial Court convicted the accused persons for various sentences, two of whom were sentenced to death while Respondent No.l was awarded life imprisonment and a fine of Rs.20,000 under section 302/149, P.P.C. Ghulam Farid was sentenced to death on 11-5-1991. When the matter came up for confirmation of death sentence and also appeal filed by the accused, application under section 426, Cr.P.C. Was filed on behalf of Respondent No.l. The learned Judges of the High Court by impugned order dated 25-6-1991, suspended the sentence and allowed him to be released on bail on furnishing bond in the sum of Rs.50,000 with two sureties, each in the like amount. Leave was granted to consider whether the lack of motive or weak motive, conviction through vicarious liability by causing injuries to a witness and not to deceased and having been declared by the Police as innocent before conviction is sufficient to grant suspension of sentence. Further that whether the Court should have exercised discretion under section 426, Cr.P.C. In favour of other convicts who were placed in the same position as Respondent No.l, but had not applied for suspension of sentence.
5. The learned counsel for the Appellant contended that the learned Trial Court had convicted Respondent No.l after discussing the entire prosecution evidence and taking into consideration the defence plea raised by him and there was no valid ground for suspension of sentence. He further contended that merely because during investigation the Police had declared the accused to be innocent, cannot influence the discretion of the Court particularly when a verdict of guilt has been pronounced by a Court of competent jurisdiction.
6. The contentions raised require interpretation of section 426, Cr.P.C. It empowers the Appellate Court where the appeal is pending to suspend the sentence and also to release the accused/appellant on bail. While exercising this discretion, the Appellate Court is required to give reasons, in writing, for suspending the sentence. At the moment, we are concerned with the interpretation of subsection (1) of section 426 which is applicable to the present case and reads as follows:- "426. Suspension of sentence pending appeal. Release of appellant on bail.---(1) Pending any appeal by a coi.Victed person, the Appellate Court may, for reasons to be recorded by it in writing, order that the execution of the sentence or order appealed against be suspended and also, if he is in confinement, that he be released on bail or on his . Bond.
7. (1-A)Not relevant.
(2) Not relevant.
8. (2-A)Not relevant.
9. (2-B)Not relevant.
(3) Not relevant."
10. There can be no cavil that the Appellate Court has power under section 426, Cr.P.C. To suspend the sentence and grant bail. Such power to grant bail is not fettered by the provisions of sections 497 and 498, Cr.P.C. Reference can be made to. The State v. Shehsawar 1969 SCM R 151. It was observed that the power under section 426 of Cr.P,C., is not controlled by the provisions of sections 496 and.
11. 497, Cr.P.C., although the principles therein indicated will have. To be borne in mind in granting or refusing bail. In this context, reference may be made to Bahar Khan v. The State 1969 SCAR 81 where it was observed that "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 powers 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." It was concluded that unless strong grounds are made to appear that conviction is not liable to be sustained, bail under section 426 will not be granted. To the same effect are the observations in Abdullah Khan v.
12. Karamdad Khan 1968 SCAR 1064; Maqsood v. Ali Mohammad and another 1971 SCAR 657; Abdul Ghafoor v. Anwarul Hassan etc. 1978 SCAR 149; Faqir Mohammad v. Akbar 1979 SCAR 270 and Haji Mir Aftab v. The State 1979 SCAR 320. The discretion has to be exercised judicially by considering the relevant facts without entering or commenting upon the merits of the case. If the contention raised, requires consideration of merits, the Appellate Court would refrain from entertaining such contentions. At this stage the Court cannot enter into a reappraisal of evidence which should be considered at the time of hearing of the appeal. Where on perusal of the facts and judgment impugned, the Court comes to the conclusion that the judgment suffers from any legal error, it would be justified to suspend the sentence and grant the bail. In this regard the reasonable and legal views expressed by the trial Court should be given due consideration and weight, but all attempt should be made neither to reappraise the evidence nor to enter into the merits of the case. In this regard, reference is made to Mohammad Ashraf v. The State 1971 SCAR 183; Noor Abdullah and another v. The State 1981 SCAR 859; Jamshed Azam v. The State 1990 SCAR 1393 On the question whether the opinion of the Investigating Agency about the innocence or guilt of any person put to trial can be made a ground for suspension of the sentence particularly when the Trial Court has considered all those facts and also appraised the evidence and given a verdict against the accused a considered judgment of the Trial Court must weigh heavily against the opinion of the Investigating Agency. In this regard, reference is made to Mohammad Ashraf v.The State 1971 SCM R 183 where it was observed that the police challan is nothing but the opinion expressed by the Investigating Agency and is irrelevant for releasing the convicts on bail pending appeal. Reliance was placed on Khalid Saigol v. The State PLD 1962 SC 495.
13. In cases where life sentence has been awarded, the Courts have been reluctant to suspend it unless there is a glaring illegality or error in the judgment. We may clarify that by this observation, it is not meant that in proper cases, the bail cannot be granted where the accused has been convicted for an offence punishable with death sentence or life imprisonment. Reference can be made to Abdur Rashid v. The State 1988 SCM R 149; Mohammad Khurshid v. Wazirzada and others 1986 SCM R 181; and Nawab Khan alias Nabi and others v. The State 1987 SCM R 274.
14. The, learned counsel for the Respondent has relied on judgment of the High Court namely Altaf Hussain Shah v. The State in 1986 PCr.LJ 2202 which hail was granted to the convict who had been sentenced to death. In this case, the petitioner was convicted under section 302 and sentenced to death on the report that he along with other Constables stopped the Bus for making search but the deceased while telling the Police that he was a traveller and was going to the mortuary in connection with the death of a relative, out of fear, ran away, whereupon the petitioner had fired at him hitting him on his head. An enquiry was instituted by the Government which had exonerated the petitioner. The High Court taking into consideration the exoneration in the judicial enquiry, the criminal history of the deceased reported by the police, the tact that the petitioner had remained on pre-arrest hail during the trial without any allegation of abusing the concession and despite conviction he was not suspended from service and that the State was not supporting his conviction and was supporting the appeal for his acquittal, suspended the death sentence and granted bail. In our view such grounds, can hardly be considered relevant for purposes of suspension of sentence. With respect, we may observe that the grounds on which the bail was granted cannot be justified on the principle enunciated by section 426, Cr.P.C. Particularly when on assessm ent of evidence the Trial Court had convicted the petitioner.
15. In the present case, the Respondent -was charged under sections 302 and 307, read with 149, for the murder of Niamat Ali and Ghulam Farid and for causing injuries to five persons including Fateh Mohammad. It was pointed out that the Respondent No. 1, had not caused any injury to any of the deceased but as held by the learned Trial Court,, injury was caused to Fateh Mohammad and that he had no motive to join his co -convicts in causing the death or injury to Fateh Mohammad. The learned Judges of the High Court were impressed by the facts that there was no evidence that he had caused the grievous injury on the head of Fateh Mohammad but ignored that the charge was under section 302/307 read with 149, P.P.C. The Trial Court has held him to have participated in commission of the offence with a common object together with other co-convicts.
16. The learned Counsel for the Respondent has referred to Elahi Bux v. The State 1972 SCM R 683 where the Appellant who was convicted under section 302/149 was granted hail. In criminal cases, facts and circumstances of the case facts and circumstances of the case mostly govern the decisions and applicability of the provisions of law. In the case referred the admitted fact was that charge of abetment against the Appellant, was made by prosecution witnesses before the. Police 1-1/2 months after the occurrence. The Appellant was not related to other convicts nor Appellant's motive to participate in crime was established. But in the present case, the present case the facts are quite different and do not justify the grant of bail.
17. In Mohammad Khurshid v. Wazirzada (1986 SCM R 181) this Court cancelled the. Hail granted to the accused where the High Court while releasing a convict on bail, was impressed by the fact that he was sentenced to only 5 years and omitted to notice that the sentence was in contravention of the provision of section 302, P.P.C. And further that while granting the bail, the High Court was under the impression that it was exercising the jurisdiction under section 497, Cr.P.C. And not under section
426. In view of such mistake in the judgment the bail was cancelled. As pointed out earlier, the impugned judgment suffers from glaring infirmities and illegalities and is based on considerations which were not relevant for purposes of exercising discretion under section 426, Cr.P.C.
18. We.Therefore, allow the appeal and cancel the bail granted by the impugned order. Respondent No.] shall surrender himself voluntarily to serve the sentence.