1. ' SAIDUZZMAN SIDDIQUI, J.---We propose to dispose of the abovementioned two criminal petitions by a common judgment as the points of law arising for consideration in both the cases are identical.
2. ' The petitioner Liaqat, in Cr.P.384/L/93 was tried alongwith Khaild Javid and 7 others by Additional Sessions Judge, Sheikupura, for offences under sections 302/307/148 and 149, P.P.C. The trial Court by judgment dated 11-4-1991 found Liaqat and his co-accused Khaild Javid only guilty and accordingly convicted them under section 302/34, P.P.C. And sentenced them to life imprisonment with fine of Rs,15,000 each or in default of payment of fine to suffer R.I. For one year. They were also directed to pay compensation amounting to Rs,50,000 under section 544-A, Cr.P.C. To the legal heirs of the deceased and in default thereof to undergo further R.I. For 3 years. The other seven co- accused in the case were acquitted. Both Liaqat and Khalid Javid filed Criminal Appeal No,638 of 1991 before Lahore High Court on 12-5-1991 against their conviction and sentences awarded by the trial Court. The appeal filed by Liaqat and Khalid Javid could not be disposed of within the statutory period of 2 years mentioned in section 426 (1-A) (c), Cr.P.C. And as such both the convicted persons applied for grant of bail and suspension of sentence on the ground of delay. A learned Judge in chamber of the Lahore High Court by the impugned order, dated 26-5-1993, granted bail to Khalid Javid and suspended his sentence under section 426,, Cr.P.C. While declining the concession of bail to the petitioner, Liaqat, on the following ground:-- "2. I have heard the learned counsel and gone through the portions of the judgment with his assistance. As far as petitioner Liaqat is concerned, a specific injury is scribed to him. In these circumstances, he is not entitled to concession of bail at this stage.
3. ' The case of Khalid Javed petitioner is, however, on different footing. He is alleged to have fired but no specific injury is scribed to him. Even otherwise, he has been in jail for more than two years, yet the appeal has not been set for hearing. In these circumstances, his sentence is suspended and he is allowed bail provided he furnishes security in sum of Rs,50,000 (Rupees fifty thousand only) with two sureties, each in the like amount to the satisfaction of Assistant Commissioner/Duty Magistrate, Sheikupura. The petition is disposed of."
4. ' The petitioner, Liaqat, is therefore, seeking leave to appeal against the impugned order and has prayed for suspension of his sentence and grant of bail on the ground of statutory delay in disposal of his appeal for about 4 years.
5. ' In the other Cr.P. 84-L of 1995, the petitioner Abdul Ghafoor was tried alongwith his brother Noor Muhammad and one Rab Nawaz son of Karim Bakhsh by Additional Sessions Judge, Multan, for offence under section 302/369/34, P.P.C. All of them were convicted in the case by the trial Court by judgment dated 25-7-1992. They were convicted under section 302/34, P.P.C. To life imprisonment and fine of Rs,10,000 each or in default to undergo simple imprisonment for two years. They were also convicted under section 369/34, P.P.C. And were sentenced to five years' R.I. And fine of Rs,5,000 each or in default of payment of fine to suffer R.I. For one year. They appealed against their conviction and sentences by filing Criminal Appeal No,218 of 1992 before Lahore High Court, Multan Bench, on 16-8-1992 which is still pending. As the appeal filed by the petitioner could not be disposed of within the statutory period of 2 years, he applied for enlargement on bail and suspension of his sentence under section 426 (1-A)(c), Cr.P.C. Which was rejected by a learned Division Bench of the High Court by order dated 25-1-1995, as follows:-- "25-1-1995. Mr. Muhammad Zawar Shah, Advocate for the Petitioners.
6. ' Sh. Muhammad Rahi, Advocate for State.
7. ' Arguments addressed at the Bar in support of plea for suspension of sentence will require deeper analysis of the relevant evidence and tentative determination. It is also brought to our notice that notice for enhancement of sentence has already been issued to all the three convicts vide order dated 21-9-1992 in Criminal Revision No,154/92.
2. In the circumstances, we are not inclined to suspend the operation of sentence of petitioner Abdul Ghafoor. Criminal Miscellaneous No,1/94 is disposed of."
8. ' The learned counsel for the petitioners jointly contended that as the appeals of the petitioners were not decided within the statutory period of 2 years, they were entitled to the suspension of their sentences and enlargement on bail in terms of section 426 (1-A) (c), Cr.P.C. The learned Additional A.-G. On the other hand contended that the appellate Court was not bound to enlarge the accused persons on bail just because the statutory period mentioned in clause (c) of subsection (1-A) of section 426, Cr.P.C. Had expired and their appeals could not be decided. The learned Additional A.- G. Contended that in spite of expiry of the statutory period for decision of appeal mentioned in section 426, Cr.P.C. The appellate Court has the discretion to enlarge or refuse to enlarge the appellants on bail and suspend their sentences keeping in view the merits of the case. The learned Additional A.-G. Cited the case, Zulfiqar Muhammad Tufail v. The State (1981 SCM R 727) and Shahbaz v. The State (1992 SCM R 1903) in support of his contention that the appellate Court had the discretion to enlarge or refuse to enlarge the appellants on bail and suspend their sentences, keeping in view the merits of the case even in cases where suspension of sentence and enlargement on bail is sought by the appellant/convict on ground of statutory delay in disposal of his appeal. It is also contended by the learned Additional A.-G. That when the appellate Court has given some reasons in the order refusing to enlarge the appellant on bail, this Court will not interfere with the discretionary order of the High Court.
9. ' We heard this case partly on 10-4-1995 and after going through the authorities cited at the Bar, we felt that the scope of subsection (1-A) of section 426, Cr.P.C. Has not been fully examined in these cases. We also noticed that the question of grant of bail and suspension of sentences on ground of statutory delay in disposal of appeals before the High Court has arisen frequently in a number of cases but divergent views were expressed. Since we found no authoritative pronouncement by this Court on the subject so far, we decided to hear full dress arguments on the scope of section 426, Cr.P.C. Accordingly, we asked Mr. Asif Saeed Khosa, Advocate, who was present before us in another case to address us as an amicus curiae on the above cases on the scope of section 426 (1-A), Cr.P.C. Mr. Asif Saeed Khosa agreed to address the Court on the scope of section 426 (1-A), Cr.P.C. On the next day. We, accordingly, adjourned the hearing of the above petitions to the following day. We heard at length the learned counsel for the petitioners, the learned Additional A.- G. And the learned amicus curiae. The learned counsel for the petitioners and the learned Additional A.-G. Repeated the arguments which we have already noticed earlier in the judgment.
10. We will, therefore, refer here to the arguments of Mr. Asif Saeed Khosa, the learned amicus curiae.
11. ' The learned amicus curiae took us through legislative background of insertion of section 426 (1-A) in the Code of Criminal Procedure and after making a comparison of the provisions of section 426(1-A) with the 3rd and 4th provisos which were added to section 497, Cr.P.C. After the insertion of subsection (1-A) in section 426, Cr.P.C., contended that after insertion of subsection (1-A) in section 426, Cr.P.C. The appellant acquired a statutory right to get bail if the appeal was not decided within the period specified in sub-clauses (a) to (c) of section 426 (1-A), Cr.P.C. The learned amicus curiae, however, stated that the right of the appellant/convict to be enlarged on bail on failure of the Court to decide the appeal within the statutory period mentioned in sub- clauses (a) to (c) of subsection (1-A) of section 426, Cr.P.C. Is not absolute in nature as the appellate Court may in spite of expiry of the period mentioned in section 426 (1-A) (a), (b) and (c), Cr.P.C. May decline to suspend the sentence and enlarge the appellant on bail if for reasons to be recorded in writing it decides otherwise. As to the reasons, on which the appellate Court may decline to enlarge the accused on bail, the learned amicus curiae submitted that these reasons have to be similar to those which are contemplated under the 3rd and 4th provision to section 497, Cr.P.C.
12. ' Before considering the contentions raised in the above cases before us, it seems appropriate to refer here briefly the legislative history of insertion of subsection (1-A) in section 426, Cr.P.C. It will also be advantageous to refer to the view expressed by superior Courts on the question of delays in conclusion of criminal trials and appeals before insertion of subsection (1-A) in section 426, Cr.P.C. And the 3rd and 4th provisos in section 497, Cr.P.C.
13. ' The superior Courts even prior to the insertion of subsection (1-A) in section 426, Cr.P.C.
14. Considered delay in conclusion of appeals as a valid ground for suspension of sentence and grant of bail to an appellant/convict. However, the amount of delay which the Courts considered as sufficient to entitle the appellant/convict for suspension of his sentence and enlargement on bail varied from case to case depending upon the circumstances of each case. Subsection (1-A) was inserted after subsection (1) in section 426, Cr.P.C. By Law Reforms Ordinance of 1972 promulgated in April 1972. However, this subsection came into effect from 26-12-1975. The Legislature by providing the effect of non-disposal of the appeal of a convict within the period specified in sub- clauses (a) to (c) of subsection (1-A) of section 426, Cr.P.C. Has codified the law relating to the power of appellate Court to enlarge the appellants/convicts in a criminal case on grounds of delay in disposal of their appeals. The appellate Court, after insertion of subsection (1-A) in section 426, Cr.P.C., can suspend the sentence and enlarge an appellant on bail pending disposal of his appeal, on ground of delay in disposal of his appeal, only if the appeal of the appellant is not decided within the periods specified in sub-clauses (a) to (c) of section 426 (1-A), Cr.P.C. Apart from the periods of delay mentioned in sub-clauses (a) to (c) of section 426 (1-A), Cr.P.C., no other delay in disposal of the appeal, is now relevant for consideration as a ground for suspension of sentence and enlargement of appellant on bail by the appellate Court pending disposal of his case by that Court. It may be mentioned here that while effect of specified period of delay in disposal of an appeal was provided by Legislature by inserting subsection (1-A) in section 426, Cr.P.C. No corresponding provision was introduced in the Code of Criminal Procedure to provide a similar effect of delay in conclusion of original criminal trials. The Courts, therefore, continued to determine the effect of delay in conclusion of original criminal trials according to the facts and circumstances of each case. The law relating to effect of delays on original criminal trial and the right of an accused to get bail on account of such delay was later also codified when Ordinance LXXX of 1979 was promulgated on 2212-1979 which introduced 3rd proviso in section 497, Cr.P.C. After its second proviso. By Ordinance XXXII of 1983 promulgated on 26-12-1983, 4th proviso to section 497, Cr.P.C.
15. Was added after its 3rd proviso which curtailed the statutory right of an accused to get bail under the 3rd proviso in specified circumstances. By Ordinance XV of 1992 promulgated on 16-11-1992, both the 3rd and 4th provisos added to section 497, Cr.P.C. Were omitted and as this Ordinance could not be placed before the Assembly for approval within 4 months as required by the Constitution, in order to ensue that the effect of omission of these provisos is continued, successive Ordinances, III of 1993, dated 15-3-1993, X of 1993 dated 14-7-1993, XLI of 1993 dated 10-11-1993, XIX of 1994 dated 10-3-1994 and LIII of 1994 dated 10-7-1994 were promulgated from time to time.
16. However, by Act XIX of 1994 published on 14-11-1994, the 3rd and 4th provisos were again re- enacted and introduced in section 497, Cr.P.C. After its 2nd proviso.
17. ' The effect of insertion of subsection (1-A) after subsection (1) of section 426, Cr.P.C. In the Code of Criminal Procedure in our view, is that the appellant/convict has been conferred a right to ask for bail pending his appeal, if the Court is unable to dispose of his case within the periods specified in sub-clauses (a) to (c) of section 426 (1-A), Cr.P.C. This right of the convict/appellant is independent of his right to seek suspension of his sentence by the appellate Court on merits under section 426 (1), Cr.P.C. The right conferred on the appellant/convict under section 426 (1-A), Cr.P.C. Therefore, can be exercised by him, notwithstanding the fact that the appellate Court, in exercise of its discretion had earlier declined his prayer for suspension of his sentence on merits under section 426 (1), Cr.P.C. As a necessary corollary, therefore, it follows that the appellate Court cannot decline to suspend the sentence of an appellant under section 426 (1-A), Cr.P.C. On the ground that the appellant has no case on merits or that he would not be entitled to bail on merits or that he has been declined bail earlier on merits. The reasons on which the appellate Court may decline to suspend the sentence of the appellant while considering his application under subsection (1-A) of section 426, Cr.P.C., therefore, in our view, must be other than the merits of his case. We will now refer some of the decided cases in which this Court refused to suspend the sentence and admit the appellant to bail in spite of the fact the statutory period mentioned in sub-clauses (a) to (c) of section 426 (1-A), Cr.P.C. For decision of appeal had expired. In Zulfiqar Muhammad Tufail v. The State (1981 SCM R 727), this Court declined to interfere with the order of High Court declining suspension of sentence and admitting the appellant to bail in spite of expiry of the period mentioned in section 426, Cr.P.C., on the ground that the appeal was already fixed for regular hearing and was likely to be disposed of in the next circuit of the High Court at Bahawalpur. To the similar effects are the observations in the cases of Manzoor Hussain v. The State (1982 SCM R 357) and Abdur Rashid v. The State (1988 SCM R 149). In the case of Shahbaz v. State supra, this Court compared the provisions of subsection (1-A) of section 426, Cr.P.C. With subsection (1) of section 497, Cr.P.C. And 3rd and 4th provisos to this subsection and pointed out the difference between the two provisions as follows:- "4. 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 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."
18. ' From the above quoted passage, it is quite clear that although distinction between the two provisions was pointed out but it was finally observed that the appellate Court while declining to suspend the sentence or grant of bail must give reasons which have some nexus with the paramount object to avert commission of any further offence by the convict. In the above-noted case, this Court declined to interfere with the order passed by the High Court declining grant of bail in spite of expiry of statutory period for disposal of an appeal, after having noticed that there were counter-murder cases between the parties and, therefore, refusal of the High Court to enlarge the accused on bail was based on sound ground as it was apprehended that if the appellant was enlarged on bail, he might repeat the offence. In the case of Muhammad Akram v. The State (1994 SCM R 277) this Court while refusing to interfere with the order of High Court declining bail to appellant in that case on merits, though the bail was sought on ground of statutory delay, directed that the appeal be disposed of within one month.
19. ' From review of the abovementioned cases, it appears to us that this Court while declining to interfere with the orders of High Court, passed under section 426 (1-A), Cr.P.C. Declining bail in pending appeals after taking into consideration the merits of the cases also, did not uphold the view of the High Court in those cases, that the appellate Court could decline to suspend the sentence and grant of bail to appellant under section 426 (1-A), Cr.P.C., on the merits of the case. In our view, the considerations which outweighed with this Court in declining to interfere with the orders of High Court in the above cases was, that either the case was already fixed for disposal or was likely to be decided soon or this Court while declining to interfere with the order of High Court itself directed disposal of appeal within a specified period. These reasons certainly had no nexus with the merits of the cases. In the case of Maqsood v. All Muhammad and another (1971 SCM R 657), this Court while considering the legality of the order of High Court enlarging the convict in the case on bail, on the ground of sickness and infirmity, pending disposal of his appeal under section 426 (1), Cr.P.C. Observed as follows:-- "The discretion exercised by the High Court is also, in our opinion, in the facts of this case proper.
20. Under the proviso to subsection (1) to section 497 a sick or infirm person may be released on bail even where there are reasonable grounds for believing that he has been guilty of an offence punishable with death or transportation for life. 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."
21. ' The above rule laid down in the case of Maqsood v. All Muhammad and another supra, was reiterated in the case of Bashir Ahmed v. Zulfiqar and another (PLD 1992 SC 463), as follows:-- "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 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 SCM R 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. Karamdad Khan (1968 SCM R 1064); Maqsood v. All Muhammad and another (1971 SCM R 657); Abdul Ghafoor v. Anwarul Hussain etc. (1978 SCM R 149); Faqir Muhammad v. Akbar (1979 SCM R 270) and Haji Mir Aftab v. The State (1979 SCM R 320)."
22. Respectfully following the above enunciation of law, we are of the view that although the considerations relevant under 3rd and 4th provisos to section 497, Cr.P.C. Cannct be extended in their terms to section 426, Cr.P.C. As the 3rd and 4th provisos to section 497, Cr.P.C.. Are applicable at the stage of the case when the initial presumption as to the innocence of an accused has not been dislodged, the considerations relevant for refusal of bail under the 3rd and 4th provisos to section 497, Cr.P.C. Can be taken into account by the appellate Court while declining suspension of sentence and admission to bail to the appellant under section 426 (1-A), Cr.P.C. At this stage it will be useful to refer to some of decided cases of this Court in which the appellant/convict was admitted to bail on the ground of statutory delay, after bail was declined by the High Court under section 426 (1-A), Cr.P.C. In Muhammad Din v. The State (1986 SCMR 1970 (1), this Court admitted the appellant/convict to bail under section 426 (1-A), Cr.P.C., after bail was declined by the High Court, taking into consideration that the appeal though directed by the High Court to be fixed for hearing on 9-1-1985, the hearing did not commence until 9-3-1985. In Muhammad Yaqoob and others v.
23. The State (1991 SCM R 1459), High Court declined to admit the appellant/convict to bail after expiry of statutory period on the ground that the circumstances of the case did not justify grant of bail without specifying these circumstances. This Court while admitting appellant/convict to bail observed that good reasons have to be given by the Court while declining bail on the ground of statutory delay in disposal of appeal. Similarly, in the case of Altaf Hussain Shah v. The State 1994 SCM R 480, the High Court declined to admit the appellant/convict to bail on ground of statutory delay in spite of the fact that on an earlier occasion the High Court directed fixation of the appeal for hearing on a specified date. This Court admitted the appellant to bail considering the fact that in spite of appeal having been fixed under the orders of the High Court was not disposed of and the statutory period for disposal of appeal had long expired.
24. ' We will now consider the present cases in the light of preceding discussion.
25. In Criminal Petition No,384-L of 1993, the petitioner Liaqat son of Inayat was declined bail by the High Court on the ground that he was assigned a specific injury to the deceased in the case while his co-accused Khalid was admitted to bail on the ground that he was not attributed any specific injury to the deceased and he was in jail for more than 2 years and his appeal was not decided. It will be seen that the reason on which petitioner Liaqat was declined bail relates to the merits of the case which as held above were not relevant. The appeal is pending hearing for about 4 years and no date has been fixed so far for its final disposal. We, accordingly, convert Criminal Petition No,384-L of 1993 into appeal, allow the same and set aside the impugned order. The appellant Liaqat son of Inayat is admitted to bail in the sum of Rs,50,000 (fifty thousand only) with two sureties, each in the like amount to the satisfaction of Assistant Commissioner/Duty Magistrate, Sheikhupura.
26. ' In Criminal Petition No,84-L of 1995 the High Court declined bail to petitioner on the ground that a notice for enhancement of sentence to death has been issued to him by the Court in Criminal Revision No,154/92. This reason has no nexus with the merits of the case. It is also not disputed that provisions of section 426(1-A), Cr.P.C. Do not apply to appeals involving punishment of death. We, therefore, see no reason to interfere with the above order of the High Court. Criminal Petition No,84- L of 1995 is, accordingly, dismissed and leave to appeal is refused. Before parting with the cases, we would like to record our appreciation for the invaluable assistance rendered in the cases by Mr. Asif Saeed Khosa, A.S.C. On a very short notice.