ORDER SHEET

IN THE HIGH COURT OF SINDH AT KARACHI

Cr. Appeal No. 53 / 2017

Date Order with signature of Judge

1. For orders on M.A. No. 2648/2017.

2. For orders on M.A. No. 1412/2017 (u/s. 426 Cr.P.C.)

3. For hearing of main case.

03.03.2017

Mr. Munawwar Ali Memon, advocate for the applicant.

Mr. Anwar A. Subhani, State Counsel.

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Khadim Hussain Tunio, J. - Hussain son of Ramzan (appellant) has filed an application under Section 426(2)(b), Cr.P.C. seeking for suspension of his sentence and consequential his release on bail pending disposal of his appeal before this Court.

2. A resumes of the relevant facts would tell that the appellant was tried by the learned trial Court (Additional Sessions Judge-II, Thatta) in case-FIR No. 56/2016 dated 07.06.2016 under section 23(1)A, Sindh Arms Act, 2013, P.S. Mirpur Sakro and he was held guilty for an offence under section 23(1)A of Sindh Arms Act and sentenced to him to suffer one year with fine of Rs.10,000/= in case of default appellant will suffer S.I. for 30 days more vide judgment dated 17.01.2017. However, benefit of Section 382-B, Cr.P.C. was extended to the appellant.

3. Learned counsel for the appellant has contended that the appellant is innocent and did not commit any crime. Learned counsel for the appellant has also contended that the appellant has been falsely implicated by police with mala-fide and ulterior motives. Learned counsel for the appellant further contended that the appellant is apprehended on 07.06.2016. Learned counsel for the appellant also contended that appellant has a good case and impugned judgment is not sustainable under the law. He has lastly contended that the sentence is short one, therefore, prayed for suspension of the same during the pendency of this appeal.

4. In reply of the arguments of leaned counsel for the appellant, learned State Counsel has opposed the contention of the learned counsel for the appellant while arguing that on personal search of appellant one unlicensed pistol with two live bullets was recovered and for such offence sentence is awarded to him. He further submitted that there is sufficient evidence available on the record against the appellant and judgment passed by the learned trial Court does not suffer from any illegality and irregularity.

5. Indeed the sentence awarded to the appellant is a short one and disposal of main appeal would take some time as paper book has not been prepared by the office as yet and considering the quantum of backlog of the cases, there is no probability for an early hearing of instant appeal.

6. In case of Abdul Hameed vs. State (1999 SCMR 2589) the Hon’ble Apex Court has suspended the sentence of five years’ R.I. by holding as follows:-

“We are inclined to hold that since the sentence was short and as the sentence was enhanced by the learned Additional Sessions Judge from three years to five years, it was fit case in which the learned Judge in Chambers should have exercised the discretion in favour of the convict. We convert the above petition into appeal and admit the petitioner to bail in the sum of Rs.200,000/= with one surety in the like amount to the satisfaction of trial Court.”

7. In case of Nazeer Ali alias Nazir vs. The State (2011 YLR 403) the learned Division Bench of this Court has been pleased to suspend the sentence during pendency of appeal and appellant was enlarged on bail on the ground of short sentence.

8. In case of Ghulam Mustafa vs. The State (2012 P.Cr.L.J. 387) this Court has held as under :-

“5. It is a fact that the present appeal pertains to year 2011 and due to huge backlog of cases, it will take sufficient time to decide. On the similar ground in the case of short sentence, the leaned Division Bench of this court in the case reported in 2011 YLR 403 (Nazeer Ali alias Nazeer vs. State), held that disposal of appeal may take more time, therefore, sentence awarded to the appellant was suspended. …….. “

9. For the foregoing reasons, I feel persuaded to allow the application under section 426, Cr.P.C. which I do accordingly. The sentence awarded to appellant Hussain son of Ramzan is suspended pending decision of his appeal and admitted to bail on his furnishing a solvent surety in the sum of Rs.50,000/= (Rupees Fifty thousand) and P.R. Bond in the like amount to the satisfaction of the Nazir of this Court.

10. Office is directed to prepare book and fix instant appeal in Court according to roster.

J U D G E

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