ORDER MUHAMMAD NAWAZ ABBAS I, J.- Ghulam Hussain convict, being an accused in a case u.S.302/148/149 PPC, tried by the learned Addl: Sessions Judge, Leyyah who vide judgment dated 20.7.91 convicted him u.S.302 PPC and sentenced him life imprisonment with a i.e of Rs.2,000/- to be paid as compensation to the legal heirs of the deceased, if realized and in default of the payment of i.e to undergo one month simple imprisonment, has filed this application for the suspension of sentence seeking benefit of Section 426 (1-A) (c) Cr.P.C.
2. The applicant is attributed a stab wound of the size of 3 c.m. X 1 c.m. X 2 c.m. On the front of left chest between 6th and 7th ribs and 8 c.m. Below from the left nipple which proved fatal.
2. The learned counsel for the appellant/applicant contends that without decision of the private complaint pertaining to the same occurrence containing counter version, filed by the accused side, together with the case against the applicant under section 302 PPC, the conviction of applicant is not legal. He placing reliance on Noor Elahi v. The State etc., (PLD 1966 S.C. 1) submitted that both the matters were required to be decided together and the conviction being not sustainable, there is no reason to refuse the benefit of section 426 (1-A) (c) Cr.P.C.
3. Mr. Anwar-ul-Haq, Advocate for the State submits that a dagger blow on the sensitive part of the body of the deceased causing his death is attributed to the applicant and, therefore, his case is not fit for suspension of sentence even on statutory ground.
4. The applicant was convicted on 20.7.1991 and his appeal remained undisposed for a period of more than two years. The statutory period for decision of appeal provided under section 426 (1-A)
(c) Cr.P.C, is two years and on the expiry of the said period without decision of appeal, a right is earned by a convict to seek bail on statutory ground, but the right of suspension of sentence and release on bail is not of the nature to be extended invariable in all cases with no power of refusal.
The principal laid down by the Supreme Court of Pakistan in Muhammad Yaqoob and others v. The State (1991 S.C.M.R. 1459) and Shahbaz v. The State (1992 S.C.M.R. 1903) is that a convict is entitled to be released on bail if his appeal is not decided within the period provided under the law unless this benefit is denied for the reasons to be recorded. The phrase "reasons to be recorded" would not only confine to the reason relating to the delay itself rather also other reasons including the merit of the case. The Court while considering the bail on statutory ground is entitled to make tentative assessm ent of the evidence to form an opinion vis-a-vis the merits of the case and if is of the view that case is otherwise not fit for grant of bail, giving reasons in writing, shall be justified to refuse bail even on statutory ground.
5. Undoubtedly the appellate Court is empowered to release a convict person on bail if his appeal is not decided within the prescribed period. Under section 426 (1-A) (c) Cr.P.C, the appellate Court, however, can decline to exercise this power and to suspend the sentence even after the expiry of the prescribed period, for the reasons to be recorded. The question that what shall be the reasons to decline benefit of Section 426 (1-A) (c) Cr.P.C, to the convict are not specified in the Section but there can be any just and proper reason having nexus with the case. The argument of the learned counsel that delay in the disposal of appeal created a right of suspension of sentence under Section 426 (1-A) (c) Cr.P.C, is not without force but is not digestible as such. If there is no option for the appellate Court except to release a convict under Section 426 (1-A) (c) Cr.P.C, on the expiry of statutory period, it shall imply release of convict on bail in all cases of the nature as of absolute right which is not the intention of the law. In spite of lapse of statutory period the Court still has discretion to refuse to suspend the sentence for reasons to be recorded in writing and delay alone in the disposal of the appeal cannot be pressed as a ground to ask for the suspension of sentence as of right with no other consideration. The contention that the benefit of Section 426 (1-A) (c)
Cr.P.C, cannot be justifiably denied on the basis of merits of the case is unfounded.
6. Ghulam Hussain, applicant in the present case, is attributed a stab wound 3 cm x 1 cm x 2 cm on left chest which proved fatal. The trial court after detailed discussion of the defence plea held Ghulam Hussain applicant aggressor having no right of defence and the plea on the basis of the facts contained in the private complaint was accordingly rejected by the trial Court, therefore, the pendency of the complaint is of no consequence. The occurrence is admitted and even if the applicant at the time of hearing of the appeal succeeds in getting some benefit of his plea, it may not be a case of acquittal and can only be relevant in relation to the quantum of sentence.
7. Having regard to the facts of the case I do not consider it a fit case to extend the benefit of section 426 (1-A) (c) Cr.P.C, to the applicant. The application is accordingly dismissed.