WAHID BUX BROHI, J.---Appellants Muhammad Hanif and Mukhtar Ahmed have sought suspension of their sentences on the ground that they have undergone a major portion of their sentences and following the principle laid down by the Honourable Supreme Court in Khan Muhammad Mehar's case 2003 SCMR 22 and the cases of Ch. Muhammad Sharif (Criminal Petition No,314 of 2002) and Abdul Sattar Dero (Criminal Petition No,423 of 2002) they may be released on bail pending decision of the appeal.
2. In view of the plea, as aforesaid, it is needless to lay down the facts of the case in details, but suffice it to say that on a reference made by Chairman NAB (Reference No,24 of 2000) against Ch. Muhammad Sharif and the aforementioned appellants the Accountability Court took cognizance of the offence and upon trial convicted them for an offence under section 9(a)(iv) and (v) of the National Accountability Bureau Ordinance, 1999 and awarded them punishment under section 10 thereof. Each of them was sentenced to rigorous imprisonment for 14 years. Additionally, co- accused Ch. Muhammad Sharif was imposed fine of Rs,100 million, while the present appellants were directed to pay fine of Rs,10 million or in default of payment of fine to undergo rigorous imprisonment for 5 years more. Forfeiture of their all movable and immovable properties was also ordered. Benefit of section 382-B, Cr.P.C.. was allowed to them. The instant appeal has been preferred by Muhammad Hanif and Mukhtar Ahmed against the aforesaid conviction and sentences.
3. Earlier, the appellants as also the co- accused Ch. Muhammad Sharif, the appellant (in Appeal No,20 of 2000) and Khan Muhammad Mehar, the appellant in another case viz Criminal Accountability Appeal No,3 of 2001 approached this Court for suspension of their sentences on the ground that they had undergone major portion of the sentences, and by a common order passed on 6-8-2002 their applications were dismissed. One of the grounds for rejection of bail plea was that the main appeals have already been directed to be listed immediately after summer vacations for hearing. Eventually, the appeals could not be decided as expected. However, out of the abovementioned appellants Khan Muhammad Mehar's sentence has been suspended by the Honourable Supreme Court (2003 SCMR 22) and so also Ch. Muhammad Sharif has been granted similar relief.
4. We had heard Mr. M.L. Shahani, learned counsel for appellant Muhammad Hanif, Mr. M.A. Kazi, learned counsel for appellant Mukhtar Ahmed and Mr. Syed Zaki Muhammad, D.A.-G. for the State on these applications but before passing the order it was felt that any observation made in respect of the plea that on undergoing major portion of sentence an appellant would be entitled to suspension of his sentence would entail far-reaching consequences and in a large number of appeals arising out of the offences in other laws including P.P.C. such a concession would invariably be claimed, therefore the Advocate-General Sindh may also be heard. Notice was accordingly issued to Advocate-General Sindh for addressing the Court. Arguments were heard on 20-3-2003 and Mr. Habib Ahmed, learned Assistant Advocate-General made submission on the point in question. The remaining counsel. were also heard again.
5. Learned counsel for appellants mainly urged that the appellants have undergone major portion of their sentences, as per jail record, since they have earned remissions allowed to them in accordance with law and as such they may be granted the same concession of suspension of sentence as allowed by the Honourable Supreme Court in the cases of Khan Muhammad Mehr, Ch. Muhammad Sharif and Abdul Sattar Dero etc. Mr. Syed Zaki Muhammad, learned D.A.-G. opposed the bail on the ground that the remissions earned by the appellants are not wholly in accordance with law and they have yet to undergo the major portion of their sentences. He was also of the view that the period of sentence served Out by them is quite short and the remaining sentence may not be suspended.
6. Mr. Habib Ahmed,' learned Assistant Advocate-General argued that the law is well-settled since long that sentences of appellants are suspended on general principles that either the sentence to be undergone by a convict is too short or the merits of the case warrant suspension of the sentence; or at the most jurisdiction may be exercised by the High Court under section 561-A, Cr.P.C., but that too as held in Abdul Khaliq v. State PLD 1990 Karachi 448 is to be undertaken in extreme hardship cases. He further contended that in Sharif's case (supra) the convict was on parole on medical grounds, the sentence had eventually been suspended already by the Government, and even if his application was not allowed, he could not be remanded to custody as long the order of parole continued to remain in force. He further submitted that every criminal case has its own circumstances, the principles laid down in precedents are as such to be applied looking to the circumstances of each case.
7. As regards the remissions, fresh jail rolls, were called for by this Court. These reports indicate that up to 7-3-2003 appellant Mukhtar has undergone 7 years 10 months and 8 days, while Muhammad Hanif has served 10 years, 3 months and 2 days. A note appended to these reports reads that the remissions are subject to approval of higher authorities.
8. It may be observed, at the outset, that the contention of learned D.A.-G. questioning the quantum of the remissions earned by the appellants, on the ground that the same were not wholly valid and legal cannot be entertained at this stage since the question of withdrawal of remissions after grant thereof is under consideration before the Honourable Supreme Court in Abdul Sattar Dero's case (Criminal Petition No,423 of 2002) and Criminal Petition No,65-P of 2002 and Criminal Petition No,420-P of 2002.
9. As far as the period of sentence is concerned the precedent that was eminently relied upon during the course of arguments was Adnan Khawaja's case decided by the Honourable Supreme Court (Criminal Petition No, 281 of 2001) wherein , placing reliance on the case of Zulfiqar Ali v. State 1994 SCMR 548 the sentence was suspended.
10. In Zulfiquar's case (supra) the accused was sentenced to 2 years rigorous imprisonment with fine of Rs,10,000 and against default in payment of fine he was to undergo further 6 months rigorous imprisonment and the Honourable Supreme Court considering the period of sentence, suspended the remaining portion of sentence and granted him bail. It is significant to mention that by the time the aforesaid matter was heard, the petitioner had to serve 2 years and few months more (in case of nonpayment of fine) and thus he had to undergo a short period. It would be gathered from the order of Honourable Supreme Court in cases of Adnan Khawaja and Zulfiqar Ali (supra) that no rule was laid down that if the major portion of the substantive sentence was undergone the convict would, under all circumstances, be entitled to bail. On the contrary, the sentence undergone was short and so also was the remaining period. In fact the weighing factor for suspension of sentence seems to be the short sentence yet to be undergone by the convict. The contention based An the aforesaid analogy, therefore, finds no support from the aforesaid precedents.
11. Later on, in the cases of Khan Muhammad Mehar, Ch. Muhammad Sharif and Abdul Sattar Dero the prominent factor, commonly, was that the disposal of the appeal. was likely to take some time and coupled with this fact the quantum of sentence was considered and the sentences were suspended. The peculiar circumstances of Khan Muhammad Mehar's case were, as observed by the Honourable Supreme Court, that. the petitioner therein, according to relevant entries in the jail record, had already undergone his sentence of imprisonment. In the case of Ch. Muhammad Sharif (Criminal Petition No,314 of 2002), the cases of Adnan Khawaja (supra), Khan Muhammad Mehar (supra) and Ch. Sher Ali (Criminal Appeal No,752 of 2001) were considered and additionally, his release on parole on medical ground was also taken into consideration. He had, in fact, undergone a period of 11 years and few months out of a total sentence of 21 years. In Sattar Dero's case (Criminal Petition No,423 of 2002) the Honourable Supreme Court observed that the said petitioner had already undergone his substantive sentence and also the sentence in lieu of fine as per information furnished by the Provincial Government.
12. It would not be out of context to mention that following the principles by the Honourable Supreme Court even this Court suspended the sentence in .Waryam Faqir's case (Criminal Accountability Appeal No,33 of 2002) as the remaining sentence was only 2 years which was yet to be served out by him. Moreover, in that case the appeal was not likely, to come up very soon and although partly heard earlier, it was ordered subsequently that the same may not be treated as part heard since one of the members of the Bench was not available at the Principal Seat.
13. On a careful study of the principles laid down by the Honourable Supreme Court for suspending the sentences during appeal in the aforementioned cases, it appears that the outstanding feature commonly considered by the Honourable Supreme Court was that the hearing of the appeal was not likely in near future and coupled with this the other factors were duly considered in each case.
We agree with Mr. Habib Ahmed, learned Assistant Advocate-General that observations made in a criminal case by the superior Court shall not have universal application as each case proceeds on its own facts and circumstances and the rule laid down in a precedent can be pressed into service and relied upon after giving due regard to the circumstances of the case wherein the authority is to be applied. In the instant case, it may be observed that in view of the set up of new roster applicable with effect from next week the Bench that had partly heard one of the appeals in the month of December, 2002 is again not constituted and as such the learned counsel for appellants were justified in attempting to invoke application of the principles laid down in the aforementioned cases on the premises that the hearing of the main appeals is not likely to take place in near future.
In this view of the matter we have given our anxious consideration to the other contentions raised by the learned counsel to assess the other probative circumstances for and against the bail plea.
14. It was, however, emphasized by the learned counsel that on merits the case, as per charge sheet, is initially based on the alleged acts, committed by Ch. Sharif, while the other two appellants are involved on the allegation that they aided/abetted/assisted him, but the main accused has already been granted bail by the Honourable Supreme Court and even one of the instant appellants namely Mukhtar has been released on parole. These factors, on a rational approach would tend to support the plea of bail in favour of the present appellants. We are of the firm view that the ground taken heavily by the learned counsel that the appellants are entitled to grant of suspension of their sentences since they have served out major portion of the sentence, is indeed, not the sole factor for deciding the question of suspension of sentence, but in view of the peculiar circumstances of the case as enumerated earlier, a case of suspension of sentence within the meaning of the rule laid down by the Honourable Supreme Court in the cases discussed above is made out. All the same, on the crucial question whether in an appeal when the appellant serves out the major portion of sentence he would be entitled to suspension of sentence on this ground alone, it is desirable that a larger Bench may be constituted for determining this point.
15. However, in result of the foregoing discussion the instant applications are allowed and the sentences of the appellants are suspended subject to furnishing two sureties by each of them in the sum of Rs,2,000,000 (Rupees two million only) each and P.R. bond in the like amount to the satisfaction of Nazir of this Court. The office may obtain the orders of the Honourable Chief Justice for constitution of a larger Bench on the question pointed out above.