1. ' By judgment, dated 22-6-1999 passed by learned 8th Additional Sessions Judge, South Karachi, both the applicants were convicted under section 392, P.P.C. Read with section 34, P.P.C. To suffer R.I. For 7 years and also to pay a fine of Rs,25,000 each. In case of default, both the accused were to suffer further R.I. For six months. The applicants were, however, granted benefit of section 382-B, Cr.P.C.
2. ' The judgment of conviction has been challenged by way of abovementioned two separate appeals which are pending. The miscellaneous Applications Nos.1180 of 2000 and 1027 of 2000 have been separately filed on behalf of appellants under section 426(1-A)(b), Cr.P.C. For suspension of sentence and passing orders for releasing the convicted persons on bail in the above appeals.
3. ' I have heard learned Advocates for the applicants and Mr. Sharafat Ali, learned counsel for the State. Learned counsels appearing for the appellants/convicts have pleaded that, even on merits the conviction could not be sustained. However, the applications have been pressed on statutory grounds on the plea, that since the conviction of the applicants did not exceed seven (7) years, and their appeals have not been decided in a period of one year of their conviction, they are entitled to be released on bail.
4. ' Learned counsel for the State concedes to the release of the applicants on bail, in view of the provisions of the statute as one year has lapsed and their appeals could not be decided.
5. ' The provisions of section 426(1-A) are reproduced hereunder:-- "426. Suspension of sentence pending appeals---Release of appellant on bail.---(1)
6. (1-A) An Appellate Court shall, unless for reason to be recorded in writing if otherwise directs, order a convicted person to be released on bail who has been sentenced--
(a) .......................................................................................
(b) to imprisonment for a period exceeding three years but not exceeding seven years and whose appeal has not been decided within a period of one year of his conviction.
7. (c)
8. It is borne out from the record that the applicants were convicted to suffer R.I. For 7 years vide judgment, dated 22-6-1999, and are in jail since then. A period of more than one year has passed since their conviction and their appeals have not yet been decided.
9. ' Honourable Supreme Court in the authority reported in Muhammad Yaqoob and others v The State 1991 SCM R 1459 did not approve the order of rejection of the application for suspension of sentence and was pleased to allow the criminal appeals against the order, dated 10-2-1990 of the Lahore High Court in view of the provisions contained in section 426(1-A), Cr.P.C. And directed the petitioners to be released on bail who were sentenced to suffer life imprisonment and their appeals remained indisposed of for a period of two years. Similar view was taken by the Lahore High Court in the authority reported in Sikandar alias Dhuni and another v The State 1995 PCr.LJ 1522.
10. ' Subsequently, relying upon the above-referred authorities it was observed in the case-law reported as Idrees v. The State PLD 1997 Kar. 361 as under:-- ' "The plain reading of the above provision which clearly shows that the Legislature has purposely inserted the word ' shall' to make it mandatory. The words 'unless for reasons to be recorded in writing it otherwise', sufficiently indicate that the Appellate Court shall order a convicted person to be released on bail who has been sentenced 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.
11. Thus, subsection (1-A) of section 426, Cr.P.C. Does not make it mandatory for the Court to record in writing the reasons for allowing suspension of execution of sentence but it makes it a rule to suspend the execution of the sentence in cases covered by clauses (a), (b) and (c) of the said provision. Meaning thereby that the refusal was an exception and required by law to be reasoned in writing in case of refusal. It has been laid down in the authorities referred to by the learned counsel for the parties that the suspension of sentence on statutory grounds under any clause of section 426(1-A), Cr.P.C. Is a rule and its refusal an exception for which reasons have to be recorded in writing."
12. For the reasons that the applicants are convicted to suffer R.I. For 7 years and their appeals could not be disposed of for a period of more than one year, their case is fully covered under subsection
(b) to section 426(1-A), Cr.P.C. Thus, on point of statutory grounds the applicants are entitled to be released on bail.
13. ' In view of the above facts and law, I grant M.A. 1180 of 2000 and M.A. 1027 of 2000 in Criminal Appeals Nos.95 of 1999 and 96 of 1999 and suspend the execution of sentence passed against the appellants by 8th Additional Sessions Judge, Karachi South. The appellants shall be released on bail after furnishing solvent sureties in the sum of Rs,1,00,000 (Rupees one lac only) each and P.R.
14. Bond in the like amount to the satisfaction of the Nazir of this Court.