' The petitioner stands convicted for an offence under section 319 of the P.P.C. And sentenced to R,I.
For five years, with payment of Rs,3,00,000 as Diyat to the legal heirs of Abdul Qayyum, deceased.
He has filed this application for suspension of his sentence and grant of bail during the pendency of the appeal.
2. The petitioner's learned counsel mainly urged that the offence under section 319 of the P.P.C. Is bailable and thai even after conviction the petitioner deserves bail as of right. In this connection, he placed reliance on the following judgments:--
(i) Shah Hussain v. The State PLD 1995 Kar. 209,
(ii) Amjad Ali alias Muna v. The State 1995 PCr.LJ 447, and
(iii) Liaqat Ali v. Muhammad Aslam and 5 others 1996 PCr.LJ 2036.
3. I am afraid the argument raised by the petitioner's learned counsel is without any force. The rule of grant of bail as of right for a bailable offence is applicable to an undertrial prisoner and not a convict. The accused person can definitely claim bail as of right under the provisions of sections 496 and 497 of the Cr.P.C. In respect of a bailable offence. However, the position is completely changed when he is convicted of the offence. The presumption of innocence in his favour stands negated and his status is changed from an accused to that of a convict. The distinction qua a bailable or non-bailable offence stated in the IInd Schedule of the Cr.P.C. Is relatable to an accused and not a convict. The view that a person convicted of a bailable offence is entitled to bail as of right was expressed in the case of Hata and others v. The State PLD 1967 Lah.
1302. However, it was not approved in the case of The State v. Shah Sawar 1969 SCMR 151. It was held in Shah Sawar's case that there was no general rule that a convict was entitled as of right to be enlarged on bail during the pendency of an appeal against conviction. It was further held that powers under section 426 of the Cr.P.C. Were not controlled by the provisions of sections 496 and 497 of the Cr.P.C., although principles laid down therein were to be borne in mind in granting bail and that suspension of sentence and grant of bail was discretionary with the Court. In the case of Liaqat Ali v. Muhammad Aslam and 5 others 1996 PCr.LJ 2036 it was held that after conviction, suspension of sentence of the convict was a matter of grace on the part of the Court and not a right of a convict. However, a different note was struck in the case of Shah Hussain v. The State PLD 1995 Kar.
209. In the said case, placing reliance on the judgments in the cases of Mian Mahmud Ali Qasuri and others v. The State PLD 1963 SC 478 and Hata and others v. The State PLD 1967 Lah. 1302, the learned Judge of the Karachi High Court expressed the view that a person convicted of a bailable offence was entitled to bail as of right during the pendency of his appeal. I am afraid the learned Judge was not properly assisted by the learned counsel for the parties. The view expressed in Hata's case, as noted above, was not approved by the Honourable Supreme Court of Pakistan in Shah Sawar's case. In Mian Mahmud Ali Qasuri's case the Honourable Supreme Court was pleased to hold that powers of bail were exhaustively dealt with in Chapter XXXIX read with section 426 of the Cr.P.C. And that provisions of section 561-A of the Cr.P.C. Could not be invoked for the said purpose. It was also ruled that while granting bail a Court could not incorporate in the bail bond any condition other than the conditions mentioned in section 499 of the Cr.P.C. It is nowhere held in this case that bail can be claimed by a convict for a bailable offence as a matter of right during the pendency of his appeal. The petitioner's learned counsel also relied on the case of Amjad Ali alias Muna. In this case the petitioner was convicted for an offence under section 354 of the P.P.C.
And sentenced to undergo two years' R.I. The headnote of the order is somewhat misleading because it gives an impression as if bail was granted, among others, for the reason that the offence committed by the convict was bailable. The correct position is that in the first para. Of the order the contentions of the learned counsel were noted. One of the contentions was that the offence under section 354 of the P.P.C. Was bailable. However, the sentence was suspended and bail granted on the sole ground that the appeal was not likely to be taken up soon.
4. The appellant has been convicted by a Court of competent jurisdiction and sentenced to undergo R.I. For five years, apart from payment of the amount of Diyat to the legal heirs of the deceased. The petitioner's learned counsel has not been able to point out any legal infirmity in the judgment of the trial Court to show that his conviction was not likely to be maintained. I am not persuaded to suspend the petitioner's sentence and grant him bail at this stage. However, I direct that his appeal be fixed for final hearing on any date within a period of three months. The petition is dismissed with the above order.