Abdul Hameed Dogar, J.--Petitioner Amjad Hassan Gurchani has sought leave to appeal against the order dated 8.4.2003 passed by a learned Division Bench of the Lahore High court, Multan Bench, Multan, whereby suspended his sentence on merits under Section 561-A, Cr.P.C. and admitted him to bail, during the pendency of his Criminal Appeal No, 575 of 2000 directed against his conviction and sentence awarded by the Special Court for Suppression of Terrorist Activities (Special Courts) Act, 1975 (XV of 1975), (hereinafter referred to as "the Act") D.G. Khan Division, at D.G. Khan.
2. Briefly stated, the facts leading to the filing of the instant petition are that respondent Sajjad Hussain was tried along with Pervaiz Iqbal, Taj Muhammad alias Badal, Sher Afgan, Muhammad Hussain alias Kaman and Ali Murad by the above mentioned Special Court under Sections 302, 324, 337-D, 148 and 149 PPC and convicted and sentenced the respondent under Section 302(b)/34 PPC to imprisonment for life as Tazir whereas convicted and sentenced proclaimed offenders, namely, Muhammad Hussain and Ali Murad under the same provisions to death as Tazir. However, acquitted accused Taj Muhammad alias Badal, Sher Afghan and Pervaiz Iqbal vide judgment dated 8.12.2000.
3. Respondent Sajjad Haider assailed the said judgment in appeal before the Lahore High Court, Multan Bench and during the pendency of the appeal, Criminal Misc. Application No, 1 of 2002 was preferred on 7.8.2002 seeking the suspension of sentence which was allowed vide impugned order.
4. Sardar Muhammad Latif Khan Khosa, learned counsel appearing for the petitioner vehemently urged that the impugned order is without jurisdiction and liable to be set aside on the legal aspects. According to him sub-section (1) of Section 7 of the Act expressly excludes the application of Section 426 Cr.P.C. during the pendency of the appeal before the High Court, therefore, exercising the provisions under Section 561-A Cr.P.C. would amount to defeat the express intention of the legislature. He emphasized that the sentence of the respondent has been suspended on merits, in utter disregard of the rule laid down by this Court in the cases of The State v. Syed Qaim Ali Shah (1992 SCM R 2192) and Pervaiz Akhtar v. Muhammad Inayat and 4 others (1995 SCM R 929), according to which, it is only in exceptional cases, the High Court can exercise the jurisdiction under Section 561-A Cr.P.C.
5. On the other side, Kh. Sultan Ahmad, learned Sr. ASC for the respondent controverted the above contentions and in support placed reliance on the case of Manga Khan v. The State (1996 PSC (Criminal) 332). According to him irrespective of abovementioned ouster clause in the Act, this Court declined to interfere with the order of learned Divisions Bench of Lahore High Court, Lahore, admitting respondent Muhammad Ismail to bail while exercising the jurisdiction under Sections 426 and 561-A Cr.P.C.
6. Mr. Ainul Haq, learned ASC, however supported the arguments of learned counsel for Respondent No, 1 and submitted that it would not be justified to set aside the impugned order as the appeal is likely to be disposed of shortly.
7. After having a careful scrutiny of the entire record and the case law referred to above, we fully agree with the contentions raised by the learned counsel for the petitioner. In the cases of The State u. Syed Qaim Ali Shah and Perviaz Akhtar v. Muhammad Inayat & 4 others (supra), it has been held that the High Court, during the pendency of appeal, cannot release a convict on bail in view of the exclusion of application of Section 426 (Cr.P.C. by Section 7(1) of the Act. As regards the invocation of Section 561-A Cr.P.C. by the High Court, it has been restricted to the cases of the hardship, such as pendency of appeal of convict for a number of years either on account of delaying tactics on the part of the prosecution agency or because of heavy work load of the Court.
Irrespective of the above, ailment of the nature detrimental to life has also been considered to be a ground of hardship.
8. Even in the case of Manga Khan (supra) relied by the learned ' counsel for the respondents, this Court has held that the High Court can only exercise the provisions of Section 561-A Cr.P.C. in the cases of hardship, thus it also does not support the case of Respondent No, 1.
9. While suspending the sentence of respondent, learned High Court has not dilated upon any of the above mentioned prerequisite conditions. It is only merit which has been considered to be the ground for suspending the sentence and admitting the respondent to bail which is not the requirement of law as discussed above.
10.Resultantly, the petition is converted into appeal and is allowed and the impugned order is set aside. Bail granted to Respondent No, 1 by the learned Lahore High Court vide order dated 8.4.2003 is cancelled.