' Petitioners were convicted under section 392/34, P.P.C. And each one of them was sentenced to 5 years' R.I. And a fine of Rs,5,000, by the Special Court for Speedy Trial vide order, dated 18-11-1993.
Benefit of section 382-B, Cr.P.C. Was also given to them.
2. They have been convicted on the allegations that on 7-1-1993 they robbed Mst. Zubaida Begum and Surraya Nasim of Their purses and ornaments at pistol point. The victims are school teachers.
Mst. Zubaida Begum was carrying staff salary of Rs,55,143 to her school. Mst. Surraya Nasim also had cash in her purse. One of the accused placed pistol against the neck of Mst. Zubaida Begum and told her to hand over what she had in her possession. At that time these lady school teachers were accompanied by five school girl students.
3. Suspension of sentence and grant of bail are sought under section 426, Cr.P.C. On the statutory ground. It is averred that the appeal was filed on 24-11-1993 before the Supreme Appellate Court and on account of the legislative change the appeal is lying in this Court undecided. It is contended that the petitioners have already undergone the major portion of the sentence and the appeal not having been decided for more than one year, petitioners have become entitled to the grant of bail under section 426(1-A), Cr.P.C.
4. Learned counsel has placed reliance on Muhammad Yaqoob and others v. The State 1991 SCM R 1459 to contend that if the appeal is not decided within the period prescribed by subsection (1-A) of section 426, Cr.P.C. Then the sentence of a convict has to be suspended and bail granted to him.
In this respect he contends that heinousness of a crime cannot be gone into. In the precedent case the Honourable Supreme Court granted bail on the statutory ground in a murder case. We, however, are not persuaded to grant bail on the statutory ground in view of the special circumstances of the present case.
5. If has to be understood that right of bail to a convict on the statutory ground is not an' absolute right. It still remains within the discretion of the Appellate Court to grant bail to a convict, or not. Of course, the discretion has to be exercised judiciously and not fancifully or arbitrarily. Subsection (1- A) of section 426, Cr.P.C. Is reproduced below:- "An Appellate Court shall, unless for reason to be record d 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 appeal has not been decided within a period of six months of his conviction;
(b) to imprisonment for a period of 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."
' Subsection (1-A) was added by Law Reforms Ordinance, 1972. Section 426 as it originally stood and which is now numbered as subsection (1) of section 426, Cr.P.C. Reads as follows:-- "Pending any appeal by a convicted 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 own bond."
6. Comparison of subsection (1) and subsection (1-A) of section 426, Cr.P.C. Makes it clear that when an appeal is filed then irrespective of the period of its pendency, the appellate Court has the jurisdiction to suspend the sentence and grant bail to a convict, but in that case the Court has to give reasons in writing for releasing a convict on bail. Under subsection (1-A) supra, however, the order has been reversed. If a convict has already suffered the sentence of imprisonment for a particular period stated in that subsection and his appeal has not been decided within the prescribed period, then the Court still has the discretion to refuse the grant of bail but in that case the Court has to give reasons in writing for not releasing him on bail. It can be said that when a convict has suffered the prescribed period of imprisonment without his appeal having been decided, then the grant of bail is a rule while the refusal is an exception to the rule. However, the matter still remains within the discretion of the appellate Court. Merely because the appeal has not been decided within the stated period of time would not in any way give an unabridged right of bail to a convict.
7. The scope of subsection (1-A) of section 426, Cr.P.C. Came up for detailed examination before the Honourable Supreme Court in Shahbaz v. The State 1992 SCM R 1903. While distinguishing this subsection with subsection (1) of section 497, Cr.P.C., the following observations were made:- "There seems to be a marked distinction between subsection (1-A) of section 426, Cr.P.C. And subsection (1) of section 497 with its above provisos inasmuch as under the former the Appellate Court for the reasons to be recorded can decline to suspend sentence or release a convict on bail even upon the expiry of two years' period and the reasons which are to be recorded are not specified therein, whereas under the latter provision, the benefit of the 3rd proviso can only be denied if the accused falls within the categories specified in proviso 4 i,e, he is a previous convict or in the opinion of the Court he is a hardened, desperate or dangerous criminal. In other words, under the former provision, the Court has more discretion in the matter as compared to the latter provision. The reason for providing as such appears to be obvious, namely, subsection (1) of section 497, Cr.P.C. Is to be pressed into service before a trial is concluded and it is not certain at that stage whether the trial will culminate in conviction, whereas subsection (1-A) of section 426, Cr.P.C. Is to be invoked after a competent Court of law after trial records conviction on the basis of evidence, therefore, the Court has been empowered to decline to suspend the sentence or grant bail for any reason which it may consider just and proper. However, such a reason should have nexus with the paramount object to avert commission of any further offence by the convict."
' Mr. Justice Rustam S. Sidhwa recorded a separate note and held as under:-- "Section 426(1-A), Cr.P.C. Grants to the appellate Court the power to. Release a convicted person on bail whose appeal has not been decided within varying periods of his conviction as stated in clauses (a) to (c) thereof, unless for reasons to be recorded in writing it considers otherwise. It is, therefore, clear that notwithstanding the lapse of the period of time stated in clauses (a) to (c), the Appellate Court has discretion to refuse to suspend the sentence, for reasons to be recorded in writing."
8. In the case of Abdul Razzaq v. The State 1983 SCM R 234, the Supreme Court repelling the contention that a convict becomes entitled to bail if his appeal is not decided within the various periods prescribed under subsection (1-A) of section 426, Cr.P.C. Held as under:-- "The argument if accepted would imply automatic release on bail in all such cases. This could not be the intention underlying the law."
9. The conclusion that follows, therefore, is that discretionary power of the appellate Court to refuse bail to a convict even in the case where the appeal remains undecided despite the lapse of prescribed time, has not been taken away. In an appropriate case, the appellate Court for reasons to be recorded can refuse grant of bail to a convict. There can be many reasons, depending on the circumstances of each case, on the basis of which the appellate Court may exercise its discretion to decline bail to a convict, pending his appeal. One of such reasons where the Court should always be ready to exercise its discretion to refuse bail would be to avert repetition of crime by the convict. If in the circumstances of any case it can be presumed that a convict if released on bail is likely to repeat the offence then the bail has to be refused.
10. Mr. MA. Zafar, learned counsel for the petitioners has vehemently argued that in the case of Muhammad Yaqoob (supra), the Supreme Court has granted bail to a convict who had been sentenced in a murder case, which offence according to him is more serious than the one under section 392, Cr.P.C. There is no force in this contention. The precedent case is clearly distinguishable. In that case order of the High Court was set aside on the following consideration:-- "Merely stating that it is not a proper case for enlarging the petitioners on bail can hardly constitute a good reason justifying for withholding a benefit which the Code of Criminal Procedure has expressly given to them. The learned Additional Advocate-General has not been able to point out any reason why the petitioners should not be released on bail."
The import of that judgment is that the appellate Court should give reasonable ground for refusal of bail. It must be stated that irrespective of the heinousness of the crime committed or the quantum of punishment awarded it is the apprehension of repetition of an offence by the convict in case he is released on bail pending his appeal, which will be the material consideration for refusing bail to a convict. It is not a quantum of punishment but the nature of offence which provides guideline for acceptance or refusal of bail to a convict. Therefore, where the convict has committed an offence which can reasonably be expected to be repeated by him if released on bail then the bail can validly be refused to him. Similarly, a desperate person should not be let loose on society so long as it is possible to do so. It has been repeatedly held by the superior Courts that where an offence is likely to be repeated by the accused person (sic) in a non-bailable case, even though it may not fall within the prohibitory clause of section 497, Cr.P.C. A fortiori, this principle will be applicable in the case of a person who has been convicted of such an offence, because the initial presumption of his innocence stands rebutted on his conviction. An accused person has to be presumed innocent pending his trial but after his conviction the presumption of innocence vanishes and till the decision of his appeal he is presumed to be guilty of the offence alleged against him.
11. In the instant case, petitioners robbed two lady school teachers at pistol point when they were going to their school, in the company of other girl students. In these circumstances, it can be fairly inferred that the petitioners are desperados and the society should be protected from them, at least so long as their appeal is not decided. The case of a murder is not parallel with a case of robbery and dacoity. Murders usually take place as a result of pre-existing enmity between individuals or groups of individuals. They do not pose threat to the people at large. However, in the case of robbers and dacoits they are threat to the society as a whole. Every person feels insecure and threatened. No section of the society is safe from them. They do not act under any pre-existing motive. On the contrary, they act under the impulse of amassing wealth even by taking life of others. A dacoit is a person of desperate nature and he can be expected to repeat the offence whenever he gets chance to commit it. Therefore, the case of dacoit is clearly distinguishable from that of murderer. We, however, should not be understood to mean that bail has to be granted to a convict in a murder case, if his appeal remains undecided for the period prescribed in clause (c) of subsection (1-A) of section 426, Cr.P.C. Depending on the circumstances of each case, it remains within the discretion of the appellate Court to refuse bail for reasons to be stated in writing even in murder appeals.
12. For what has been discussed above, the application for suspension of sentence and grant of bail to the petitioners is dismissed. However, office shall make effort to fix the appeal for final hearing at an early date.