Criminal Miscellaneous No,1 of 1997 ' The petitioners Muhammad Akram and Muhammad Saleem are seeking suspension of sentence awarded to them by Sessions Judge, Vehari vide judgment dated 27-12-1994, convicting each of them under section 302/34, P.P.C. To life imprisonment with a further direction to each of them to pay compensation of Rs,20,000 to the legal heirs of the deceased under section 544-A, Cr.P.C. With the benefit of section 382-B, Cr.P.C.
2. The sentences of the co-convicts Karam Din and Ghulam Fatima, the father and mother of the petitioners respectively were suspended by this Court on 14-5-1995 while the petitioners' application (Criminal Miscellaneous No,2095) for the suspension of their sentence was rejected on merits by this Court on 14-11-1995.
3. The suspension of the sentence is sought only on statutory ground under section 426(1-A)(c) as the petitioners' appeal has not been decided within a period of two years of their conviction.
Reliance is placed on Khuda Bux v. The State 1994 PCr.LJ 2359 and Liaqat and another v. The State 1995 SCM R 1819 to contend that the statutory benefit available to the convict under section 426(1- A), Cr.P.C. Cannot be withheld even if the Court is of the opinion that the convicts are not entitled to be released on bail on merits and the right to be released on bail has not been left to the discretion of the Court. Learned counsel was also referred to an order of this Court passed in Criminal Miscellaneous No,1 of 1996 in Criminal Appeal No,164 of 1994, on 12-2-1997, wherein at the time of its decision the office had reported that appeals pertaining to the year 1985 were being fixed at the moment at Multan Bench whereas the present appeal relates to the year 1995.
4. In Liaqat and another v. The State (supra) the Hon'ble Supreme Court has held that:-- "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"; and the Hon'ble Supreme Court has further held in this very judgment that the Court can decline to suspend the sentence of the appellant while considering his application under subsection (1-A) of section 426 Criminal Procedure Code 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 if the considerations relevant for refusal of bail under the 3rd and 4th provisos to section 497, Cr.P.C. Are applicable to the case of the appellant.
5. The perusal of the abovementioned judgment of the Hon'ble Supreme Court 1995 SCM R 1819 shows that after the expiry of the statutory period as provided in sub-clauses. (a) to (c) of section 426(1-A), Cr.P.C. The bail to the convict/appellant can be refused if---
(i) the considerations relevant for refusal of bail under the 3rd and 4th provisos to section 497, Cr.P.C. Are applicable to the case of the convict/appellant, or
(ii) if it is apprehended that in case of enlargement of the convict on bail, he-might repeat the offence, or
(iii) if the High Court has already fixed the appeal for hearing.
In the present case, none of the above-enumerated reasons for refusing the suspension of sentences are available and in these circumstances the petitioners although not entitled to the suspension of sentences on merits have earned the statutory right of the suspension of their sentences under section 426(1-A)(c), Cr.P.C. As their appeal has not been decided within a period of two years of their conviction and as there is no likelihood of its disposal in the near future because, reportedly, the appeals of such category, ancient by more than a decade, are being listed for disposal of these days. Having found no reasons to deny the expressly provided statutory right of bail to the petitioners, it would be unjust to withhold the benefit indefinitely.
6. The application is, therefore, allowed and the above said sentences recorded against the petitioners are suspended till the final disposal of their appeal and the petitioners are ordered to be released on bail subject to their furnishing bail bonds in the sum of Rs,5,00,000 (five lacs) each with one surety each in the like amount to the satisfaction of Judicial Magistrate, Vehari.
Sentences' suspended.