WAHID BUX BROHI, J.- Through this application under Section 426(2A) read with Section. 561-A, Cr.P.C. , bail has been sought for a period of one month to enable the applicant to present his appeal before the Hon'ble Supreme Court.
2. The relevant facts leading to this application are that the applicant filed a forged affidavit of his step-mother in a Succession Petition in the Court of District Judge, Karachi and obtained Succession Certificate, in pursuance whereof he withdrew the amount including the share of his step-mother namely Mst. Nargis Perveen. Upon a complaint made by the District Judge under Section 476, Cr.P.C, the applicant was tried by a Judicial Magistrate and convicted for offence punishable under Section 193, PPC and sentenced to R.I. For six months and fine of Rs.5000/- or in default in payment of fine to undergo further simple imprisonment for one moth. Appeal filed by applicant against the above conviction and sentence as also the revision filed by Mst. Nargis Perveen for enhancement of the sentence were, both, dismissed by the Additional Sessions Judge, Karachi South. The applicant assailed the said order in this Court through a revision under Section 435, Cr.P.C, which was heard and decided by me, dismissing the same on 9.8.2001.
3. The applicant has sought bail, or in other words suspension of sentence, on the ground that the offence under Section 193, PPC for which he was convicted is bailable and the applicant has already furnished security in this Court and that sufficient time is required to file an appeal in the Supreme Court of Pakistan at Islamabad.
4. I have heard Mr. Muhammad Ashraf Bhatti, learned counsel for applicant, Mr. Sharafat Ali Khan, learned State counsel and Mr. Attaullah Khan, learned counsel for Mst. Nargis Perveen.
5. Main contention of learned counsel for applicant was that the offence is bailable and within the meaning of sub-section (2A) of Section 426 read with Section 382-A; Cr.P.C, the applicant is entitled to bail as a matter of right. Mr. Attaullah Khan opposed the application on the ground that powers in these two provisions of law are to be exercised by the Trial Court and not by the Court of revision or say the High Court. Mr. Sharafat Ali Khan, learned State Counsel was of the view that these powers can be exercised by any Court not necessarily the Trial Court.
6. Mr. Bhatti, learned counsel for applicant in support of his contention relied on PLD 1963 SC 478 (Muhammad Ali Qasoori Vs. State) to argue that bail in the Case of bailable offence is right of an accused. The cited judgment relates to a case for an offence under Section 124-A, PPC and the question of bail was being considered during the course of trial. Basically, the main point for consideration before the Hon'ble Supreme Court was whether a Criminal Court while granting bail could order incorporation in the bail bond of a condition other than any of the conditions mentioned in Section 499, Cr.P.C. However, the Hon'ble Supreme Court while deciding the aforesaid point observed that bail in the case of bailable offence is an indefeasible right subject, of course, to satisfactory sureties being offered. The instant case does not relate to question of bail during the trial; on the contrary, the stages of trial, appeal and revision, all, have been concluded.
7. Learned counsel for applicant further relied on 1994 P.Cr.L.J. 1552 {Muhammad Bashir v. State) and contended that when the sentence is less than one year it is to be suspended under Section 382-A, Cr.P.C. For the purpose of convenience Sections 382-A and 426(2A) and (2B), Cr.P.C, are reproduced herein below:- "382-A. Postponement of execution of sentence of imprisonment under Section 476 or for a period of less than one year.-- Notwithstanding anything contained in Section 383 or 391, where the accused:-
(a) is awarded any sentence of imprisonment under Section 476, or
(b) is sentenced in cases other than those provided for in Section 381, to imprisonment whether with or without fine or whipping for a period of less than one year, the sentence shall not, if the accused furnishes bail to the satisfaction of the Court for his appearance at such time and place as the Court may direct, be executed, until the expiry of the period prescribed for making an appeal against such sentence, or of an appeal is made within that time, until the sentence of imprisonment is confirmed by the Appellate Court, but the sentence shall be executed as soon as practicable after the expiry of the period prescribed for making an appeal, or, in case of an appeal, as soon as practicable after the receipt of the order of the Appellate Court confirming the sentence.
"426(2A) Subject to the provisions of Section 382-A when any person other than a person accused of a non- bailable offence is sentenced to imprisonment by a Court, and an appeal lies from that sentence, the Court may if the convicted person satisfies the Court that he intends to present an appeal, order that he be released on bail for a period sufficient in the opinion of the Court to enable him to present the appeal and obtain the orders of the Appellate Court under sub-section (1) and the sentence of imprisonment shall, so long as he is so released on bail, be deemed to be suspended.
426(2B) Where a High Court is satisfied that a convicted person has been granted special leave to appeal to the Supreme Court against any sentence which it has imposed or maintained, it may if it so thinks fit order that pending the appeal the sentence or order appealed against be suspended, and also, if said person is in confinement, that he be released on bail."
8. On a plain reading of Section 382-A, Cr.P.C, it would appear that where the sentence of imprisonment for less than one year is awarded under Section 476, Cr.P.C, or in cases other than those covered by Section 381, Cr.P.C, the sentence shall not be executed until expiry of the period prescribed for making an appeal against such sentence if the accused furnishes bail for his appearance as may be directed by the Court; or if appeal is preferred then such execution be postponed until the sentence of imprisonment is confirmed by Appellate Court. The import of this section is to authorize the Trial Court to suspend the sentence in the afore-mentioned circumstances so that the convict may be enabled to file an appeal. The preeminent condition of existence of right of appeal is ingrained in this provision of law and upon such presupposition a statutory facility has been provided to the convict, but when the right of appeal is not available the above provision would go out of consideration, In the instant case the right of appeal has already been exhausted by the applicant and even the level of revision has been crossed by him. No question, therefore, arises at this juncture to extend benefit of Section 382- A, Cr.P.C, to the convict.
9. As regards the applicability of provisions of sub-section (2A) of Section 4216, Cr.P.C, the language of this sub-section is unambiguous and clear, it speaks of sentence of imprisonment passed by a Court in a case other than of a non-bailable offence and an appeal lying from that sentence. Plain meaning that can be assigned to the term 'Court' would be that the word 'Court' used herein refers to original Court or Trial Court that passed the sentence provided that an appeal lies under the Code of Criminal Procedure from such sentence. Consequently, sub-section (2A) can be pressed into service before the Trial Court when it passes the sentence against which the accused has a right of appeal. I agree with Mr. Attaullah Khan, learned counsel for Mrs. Nargis Perveen that sub- section (2A) entitled the applicant to seek such relief from the Trial Court and the term 'Court' mentioned in this sub-section cannot be extended to the Court exercising revisional jurisdiction.
The principle laid down in PLD 1955 Sindh 68 (Usman Kureshi v. Crown) and PLD 1967 Lahore 1302 (Hata v. State) also supports this proposition.
10. The appropriate provision of law. Applicable at this stage is sub-section (2B) of Section 426, Cr.P.C, which in case of special leave to appeal granted by Hon'ble Supreme Court empowers the High Court to suspend the sentence or order appealed against. Benefit of this sub-section can be enjoyed by the applicant only if leave to appeal is granted by the Hon'ble Supreme Court. The authority cited by learned counsel for applicant 1 994 P.Cr.L.J. 1552, in fact, confirms the above view.
Reliance in that authority has been placed on S.M. Kalawati v. State (AIR 1952 Himachal Perdesh) wherein similar observations have been made. However, it may be mentioned here that in a subsequent case on considering the provision of Section 426(2B), Cr.P.C. Allahabad High Court took a clear view in 1956 Allahabad 523 (Shaukat AH v. The State) that High Court has no power to grant bail or suspend operation of sentence pending proposed application for special leave to appeal to Supreme Court within the provisions of the Constitution of India, It was also observed that High Court did not even possess inherent power to grant bail in the circumstances.
11. It may be concluded that under the provisions of the Criminal Procedure Code discussed above the applicant is not entitled to suspension of sentence awarded to him at this stage. Even the inherent powers under Section 561-A, Cr.P.C, cannot be stretched in his favour for the grant of bail.
He does not deserve any extra-ordinary indulge since he has committed a fraudulent act and forgery in the judicial proceedings. The application is, thus, without merits and is hereby dismissed.