ANWAR ZAHEER JAMALI, J.--- Appellant Muhammad Usman Farooqui, who has been convicted by Accountability Court No,III, Karachi in Reference No,50 of 2000 and awarded sentence to suffer R.I. For seven years with fine of Rs,15 million and in default of payment of fine to undergo further R.I. For three years, vide judgment dated 31-3-2001, has preferred this Criminal Accountability Appeal No,17 of 2001. He has also moved an application under section 426 read with section 561-A, Cr.P.C. (M.A; No,781 of 2001) with the prayer to suspend the sentence and to order his release on bail during the pendency of this appeal. In the other appeal being Criminal Accountability Appeal No,18 of 2001, arising out of Reference No,52 of 2000 the appellant has been convicted by judgment dated 13-4-2001 passed by Accountability Court No,II, Karachi and awarded sentence to suffer R.I. For seven years with fine of Rs,100 million and in default of payment of fine to undergo further S.I. For two years. In this appeal also he has moved similar application under section 426 read with section 561-A, Cr.P.C. (M.A. No,2541 of 2002) with the prayer to suspend the sentence and order his release on bail during the pendency of appeal. Both these applications, based on similar set of facts, are being disposed of by this common order.
2. Mr. Aitizaz Ahsan, learned counsel for appellant at the outset of his arguments made reference to the jail report of the appellant received vide Letter No,JB-1078 dated 10-2-2003 which shows that the present appellant was tried in three references before the Accountability Courts, being References Nos. 50 of 2000, 52 of 2000 and 51 of 2000. In the first two references he was sentenced in the manner detailed above while in the third reference (No,51 of 2000) he was convicted and awarded sentence to suffer R.I. For twelve years with fine of Rs,115 million and in default of payment of fine to undergo further. R.I. For three years. Referring to the contents of this report, received from the jail authorities, he urged that the appellant was arrested on 5-9-1996 and in all the three cases at the time of conviction benefit of section 3g2-B, Cr.P.C. Has been separately extended to him, thus, even if the substantive sentences awarded to the appellant in these two appeals are allowed to run consecutively in terms of section 397, Cr.P.C. Then as per such report the appellant has already not only served substantive sentences awarded to him by judgments impugned in these two appeals but over and above he has still more than ten years' period to his credit which could be deducted from the substantive sentence of twelve years awarded to him in the third case arising out of Reference No,51 of 2000, which is subject-matter of a separate appeal not fixed today before this Court. Learned counsel further urged that in such circumstances when the appellant has served his substantive sentence, in all fairness following the case-law laid down in this context by the Hon'ble Supreme Court of Pakistan in number of cases he is entitled to be released on bail and the sentences awarded through impugned judgments in the two appeals are liable to be suspended. In support of his arguments learned counsel placed reliance upon the following judgments/orders:
(1) Judgment dated 5-12-2001 in the case of Muhammad Mubin Khan v. The State (Criminal Miscellaneous Application No,275 of 2001).
(2) Judgment dated 10-1-2003 in the case of Abdul Sattar Dero v. The State (Criminal Petition No,423 of 2002).
(3) Order dated 19-3--2003 in the case of Abdul Wahab v. The State (Criminal Accountability Appeal No,15 of 2001).
(4) Order dated 21-2-2003 in the case of Waryam Fakir v. The State (Criminal Accountability Appeal No,98 of 2002).
3. Mr. Aitizaz Ahsan specifically referred the case of Muhammad Mubin Khan (supra) to fortify his submission with reference to the mode of application of benefit of section 382-B, Cr.P.C. In the two cases separately. He further referred the case of Abdul Sattar Dero (supra) to claim full benefit of remissions earned by the appellant as detailed in the two jail reports, reproduced hereinafter in this order, and contended that irrespective of any controversy as regards the remissions earned by the appellant, at this stage he is entitled to be released on bail. He also referred the order in the case of Abdul Wahab (supra) to show that sentence awarding to co- accused in Reference No,50 of 2000 has been suspended on furnishing of surety in the sum of Rs,1 million. He urged that appellant is, therefore, also entitled for bail on the rule of consistency. Learned counsel while concluding his submissions read some portions of the order in Waryam Fakir's case to draw our attention to many other cases referred in that order and to strengthen his plea for suspension of sentences and release of appellant on bail.
4. Mr. Muhammad Anwar Tariq, learned DPG, on the other hand contended that in view of clear language of section 397, Cr.P.C. The sentences awarded to the appellant in three references would run consecutively. He further contended that the actual sentence served by the appellant from the 'date of his arrest is only 6 years, 7 months and 10 days up to 10-4-2003 and thus he is not entitled for either suspension of his sentences or grant of bail at this stage. Learned counsel, however, in view of judgment in the case of Muhammad Mubin Khan (suprar did not dispute that the benefit of section 382-B, Cr.P.C. Is to be worked out and extended to the appellant in all the three cases separately.
5. We have carefully considered the arguments advanced by the-learned counsel, perused the case record and also the cases referred at the bar.
6. In order to appreciate properly the contentions of the learned counsel, it will be advantageous to reproduce hereunder the jail report dated 10-2-2003 received from the Superintendent, Central Prison, Karachi which runs thus: "The details of sentence with remission of convict Muhammad Usman Farooqi son of Hamid Hussain Farooqi, as required by the Hon'ble Court are submitted as under: A. DETAILS OF SENTENCES
(1) Under section 409, P.P.C. read with section 109, P.P.C. Ref. No.50/2000 D/S 31-3-2001 UTP allowed w.e.f. 27-1-1997 date of admission in Jail 5- 9-1996.R.I. 7 years Fine Rs.15 million or (3) years
(2) Under section 409, P.P.C. read with section 109, P.P.C. Ref. No.52/2000 D/S 13-4-2001 Date of Admission in Jail 5-9-1996.R.I . 7 years Fine Rs.10 crore or (2) years
(3) Under section 409, 109, P.P.C. Ref. No.51/2000. D/S 29-5-2002. Date of Admission in Jail 5-9-1996 Total sentence with sentence in lieu of fine
(34) years.R.I. 12 years Fine Rs.115 million or (3) years The Hon'ble trial Court has allowed the above convict the benefit of section 382-B, Cr.P.C. In all of the above cases according to which the actual period spent in each case is 6 years, 5 months, 10 days as in case No, 1.
B. DETAILS OF REMISSION
(1) Ordinary remission. 414 days
(2) Good conduct remission. 150 days
(3) Blood remission 90 days
(4) Special Superintendent remission 60 days
(5) Special I.G. Prisons remission 120 days
(6) Government remission President/Governor Sindh3907 days Total remission earned: 4741 days
(7) Education remission under process I.-G.
Prisons Office.
(8) Fundamental of Islam for year 1998 180 days
(9) Urdu Adeeb for year 1999 300 days (10)Arbee Adeeb for year 2000 300 days (11)F.A. (Intermediate) for year 2001 300 days (12)Computer for year 2002 300 days Total education remission: 1380 days Grant Total: 6121 days Y M D Total sentence served up to 10-2-2003 only in case No. 1.06 05 10 Remission earned up to 31-1-2003 16 10 05 Un-expired portion 10 08 15 34 00 00 It will appear from above that the above convict has already completed his substantive sentence in first two cases and still having about 10 (ten) years to his credit to be deducted from the substantive sentence of 12 years in third case, whereas subject to the approval of the higher authorities the actual period of 12 years and 11 months spent by above convict in jail during trial of Case No,2 and Case No,3 is to be further deducted from total sentence, resulting in completion of total sentence still leaving over 3 years to the credit of the convict."
7. The case record further reveals that after receipt of above jail report, on 18-2-2003 further clarification was sought by this Court in respect of remissions awarded by the President under Article 45 of the Constitution. In response to such order furhter report was 1. Received from the Superintendent Jail on 22-2-2003 wherein some clarification was given by the Superintendent Jail, which is reproduced as under:-- Remission granted under Pakistan Prison. Rules: (a)Under Rule 204 Work (b)Under Rule 211 (Good Conduct) (c)Under Rule 215 (Education Remission being processed in Inspectorate)
(d)Under (c)Rule 216 (I.-G. Prisons Remission)
(e)Under Rule 216 (Superintendent Remission)
(f) Under Rule 212 (Blood donation)
(2) Remission granted by President/ Governor Sindh
(a) Under Rule 204 Work 414 days
(b) Under Rule 211 (Good Conduct) 150 days
(c) Under Rule 215 (Education Remission being processed in Inspectorate)1380 days
(d) Under Rule 216 (I.-G. Prisons Remission) 180 days
(e) Under Rule 216 (Superintendent Remission) 60 days
(f) Under Rule 212 (Blood donation) 90 days The Hon'ble trial Court has allowed the benefit of section 382-B, Cr.P.C. In all of the cases to above convict according to which the actual period spent in each case is 6 years, 5 months, 10 days from the date of admission in jail. Other details in our earlier letter dated 10-2-2003 remain the same. In addition to the above remissions the President has also granted 780 days remission from 15-12-2001 to 11-2- 2003 on various occasions of public rejoicing under Article 45 of Constitution, which will be applicable to above convict subject to approval of higher authorities."
8. Before examining the import of above two reports if we take into account the benefit of section 382-B, Cr.P.C.
Which has been extended to the appellant in each case separately, it will be seen that in Reference No,50 of 2000 when the appellant was convicted and awarded substantive sentence of seven years vide judgment dated 31-3-2001 by that time he had already remained in custody for 4 years, 6 months and 25 days while in other Reference No,52 of 2000 by the time he was convicted and awarded substantive sentence of seven years vide judgment dated 13-4-2001 he had remained in custody for 4 years, 7 months and 8 days. Over and above, after his first conviction in Reference No,50 of 2000 uptil today he has further remained in custody for 2 years and 10 days. This is all without reference to the two reports showing huge remissions earned by the appellant during the period he reined in custody, which at this stage in all fairness, cannot be ignored for deciding the fate of two listed applications. It will be pertinent to mention her that distinct sentences awarded to the appellant in three different case are not to be taken into account collectively for deciding the fate of application under section 426, Cr.P.C. Thus sentence of twelve years' R.I. Awarded to the appellant by last judgment dated 29-5-2002 in Reference No,51 of 2000 is not relevant for decision on these two applications.
9. Reverting to the two jail reports we may observe that we have carefully perused these reports and seen that even if we take into account only the remissions earned by appellant after his first conviction or a marginal portion of total remissions earned by him then too it seems that he has already served substantive sentences of seven years' R.I. In each case.
10. Besides, while considering the question of suspension of sentence in exercise of its powers under section 426, Cr.P.C. This Court cannot remain oblivious of the fact that though by virtue of section 32(b) of the Ordinance XVIII of 1999 specific period of 30 days has been prescribed for disposal of such appeals, but for no fault of appellant these appeals are still pending for disposal for almost two years. In such circumstances, for this delay appellant cannot be penalized and incarcerated for an indefinite period.
11. The case-law referred by Mr. Aitizaz Ahsan is apt to the facts and circumstances of these appeals and furnishes valid justification for grant of two applications.
12. For the foregoing reasons M.As. Nos.781 of 2001 and 2541 of 2002 pending on the above two appeals are allowed. In the result sentences of imprisonment d fine awarded to the appellant by impugned judgments are suspended a appellant is ordered to be released on bail on furnishing surety in the of Rs,1 (one) million with P.R.
Bond in the like amount in Criminal untability Appeal No,17 of 2001 and furnishing of surety in the sum of Rs,2.5 (two and half) million with P.R. Bond in the like amount in Criminal Accountability Appeal No,18 of 2001. Such sureties may be furnished with the Nazir of this Court.