' MUHAMMAD ROSHAN ESSANI, J.--- This application under section 561-A, Cr.P.C. Has been filed for the suspension of sentence awarded to appellant Nadeem Umar and for his release on bail in this Criminal Appeal.
2. The appellant was convicted and sentenced by the learned Special Judge for Suppression of Terrorist Activities, Hyderabad, vide judgment, dated 19-81996 in a case under sections 302 and 149, P.P.C. To imprisonment for life and to pay a fine of Rs,50,000. In default of payment of fine the appellant was ordered to suffer R.I. For three years more for the murder of one Junaid. It was further ordered that he should pay a sum of Rs,50,000 as compensation, to the legal heirs of the deceased and in case of default same shall be recovered from the sale of the property of the appellant.
' We have heard Mr. Zahoor Ahmed Bloch, learned counsel for the appellant and Mr. Bahadur Ali Baloch, learned counsel for the State and perused the material on record. We are conscious of the limitation on the powers of this Court, inter alia, in relation to suspension of sentence and grant of bail.
' By section 7(1) of Suppression of Terrorist Activities (Special Courts) Act, 1975 (hereinafter called as the "Act") right of appeal was conferred on a person sentenced by a Special Court to prefer an appeal before the High Court but the powers of revision, transfer and under sections 426 (suspension of sentence and grant of bail), 491 (Habeas corpus) and 498 (bail), Cr.P.C. Were expressly taken away. It will be proper to reproduce hereunder section 7(1) of the Act as follows:-- "7. Appeals from sentences imposed by Special Courts.--- (1) A person sentenced by a Special Court shall have a right of appeal to the High Court within whose jurisdiction the sentence has been passed, (and the Provincial Government may direct any person appointed by it for the purpose to present an appeal to the High Court from an order of acquittal passed by a Special Court;) but save as aforesaid and notwithstanding the provision of the Code or any other law for the time being in force or of anything having the force of law by whatsoever authority made or done, no Court shall have authority to revise such sentence, or to transfer any case from a Special Court or to make any order under section 426 or section 491 or section 498 of the Code, or have any jurisdiction of any kind in respect of any proceedings of a Special Court.
4. In the case of Mirza Jawwad Baig v. State PLD 1975 Kar. 628, the appellants who were convicted and sentenced by the Special Court, preferred an. Appeal before this Court along with miscellaneous application for suspension of sentence and grant of bail. After a detailed discussion a Division Bench of this Court came to the view that the power of the High Court to suspend the sentence or release convicts on bail pending their hearing of appeals was not taken away by section 7 of the Act. Following the above view another Division Bench of this Court in Ubedullah v.
State 1989 PCr.LJ 626 held that the High Court has the power to grant relief, which is ancillary or incidental to the appeal, but such power may not be construed to mean that bail or suspension of sentence is to be granted as a matter of course, but a very special and exceptional case is to be made out.
5. However, the case of Abdul Khaliq v. State PLD 1990 Kar. 448 a Full Bench was constituted to examine the correctness of the above view and dissenting therefrom it was held:-- ".... For that reason, legislature intentionally has deprived Court of Appeal from power of grant of bail under section 426, Cr.P.C. During pendency of appeal. Since inherent jurisdiction of the High Court under section 561-A, Cr.P.C. Is neither specifically barred nor impliedly, the same is available to pass such orders which may be necessary to give effect to any order under this Code, or to prevent the abuse of process of any Court or otherwise to secure the ends of justice in appropriate case of hardship. Hardship case may include a case in which appeal is not disposed of within three months or order of bail is to be passed in order to secure the ends of justice However, jurisdiction of the High Court under section 561-A, Cr.P.C. Is intact as the same is not barred expressly or impliedly and orders which are consistent with ends of justice can be passed in appropriate cases of hardship including grant of bail during pendency of appeal."
6. The view taken by the Full Bench has already been upheld by the Honorable Supreme Court in case of State v. Qaim Ali Shah 1992 SCM R 2192. At the same time the Honorable Supreme Court while holding that in case of hardship section 561-A, Cr.P.C. Can be invoked for suspension of sentence has observed that delay in the trial of the case or disposal of appeal might itself, apart from other factors, constituted hardship. It may be useful to refer to the following observation of the Court:-- "However, it may be pointed out that the exclusion of the application of an appeal of a convict before the High Court is founded on the assumption that the appeal would be disposed of within three months as provided in subsection (2) of above section 7 of the Act, but in case an appeal of a convict remains pending for a number of years either on account of delaying tactics on the part of the Prosecuting Agency or because of the heavy work load of the Court, would it be fair and just to deny him bail on the ground of delay. In my view, since it has been held by this Court in more than one cases already referred to hereinabove in para. 21 that the delay in prosecution of a criminal case amounts to abuse of process of Court/law warranting grant of bail, the High Court in a case of above nature may press into service section 561-A, Cr.P.C., but not as a matter of course or as a substitute to section 426, Cr.P.C. The delay should be of the nature which may be repulsive and unconscionable."
7. In the instant case, the applicant was arrested on 10-9-1990 and was convicted on 19-8-1996 with benefit of section 382-B, Cr.P.C. This appeal was filed on 14-9-1996 and though it was required to be decided within three (3) months, twenty (20) months have already passed. We do not know how much more time would be required to hear it and dispose of it in view of the tremendously heavy backlog of such appeals filed earlier than the present one before this Circuit Bench. The applicant has remained in Jail throughout this period ever since his arrest. On merits too (which we are entitled to consider tentatively), it seems that the material witnesses are policemen. Neither the crime weapon nor empties are shown to have been recovered. The person injured has not identified the applicant. It is alleged that all the accomplices of the applicant managed to escape and contention that the evidence of identification of the applicant in the totality of the circumstances is unreliable does not appear to be totally misconceived. The allegations that the applicant was required in some other cases and his involvement in the present is mala fide cannot be ignored. The applicant is a young man and his indefinite detention might cause great hardship with respect his career. In the circumstances, Mr. Abrader Ali Baloch, learned counsel for the State also conceded that a case for suspension of the sentence was made out.
' In view of the above, we treated this case as one of hardship and suspended the sentence upon furnishing surety in the amount of Rs,2,00,000 (rupees two lacs only) vide our order, dated 3-6- 1998. Other reasons are the same.