ORDER SHEET

HIGH COURT OF SINDH, KARACHI

Cr. Appeal No.39 of 2007

Date Order with signature of Judge

Date of hearing : 12.05.2012.

Appellants : Jaffar and 3 others.

Respondent : The State

Mr. Khawaja Naveed Ahmed, Advocate for the appellants.

Mr. Ali Haider Saleem, APG for the State.

Muhammad Ali Mazhar, J.:- By this order I intend to dispose of M.A.No.10509/2011 moved under Section 426, Cr.P.C. on behalf of three appellants Jaffar, Ghulam Qadir and Meer Khan for suspension of their sentences and bail.

2. Concisely, the facts of the case are that on 1.10.2000, complainant Ramzan lodged the FIR No.59/2000 at police station Mirpur Sakro under Section 302, 34, 504/114 P.P.C in which he stated that he and his younger brother Muhammad Arab work as driver. A bus stop is situated at Sim Nali for transportation purpose. On 30.09.2000 complainant’s brother Arab arrived at the bus stop where brother-in-law of complainant Miro with his family members and Jaffar Soomro were also present. Both the parties could not tolerate each other’s presence at the bus stop and exchange hot words. On the day of incident Arab and Ghulam Muhammad reached at the bus stop Mirpur Sakro where they met Abdul Rashid and when reached at Mansoor Medical Store, they saw accused Jaffar armed with hatchet, Ghulam Haider (Qadir) armed with hatchet, Mir Khan armed with iron cudgel and Hassan was empty handed. Hassan Soomro instigated the other co-accused to attack Arab. Resultantly, Jaffar Soomro gave sharp sided hatchet blow on the head of Arab, Ghulam Haider gave sharp sided hatchet blow on the neck of Muhammad Arab and Mir Khan gave blows from his iron cudgel. Complainant party found Arab in an unconscious condition with serious injuries on his body. They immediately took him to government hospital Mirpur Sakro where Muhammad Arab breathed his last.

3. The appellant Hassan S/O Hashim Soomro was granted bail by the learned single judge of this court on 5.8.2010 on the ground that the said appellant is behind the bar since 2.10.2000 but the appeal could not be decided so far.

4. The present appellants have applied the bail on the ground of statutory delay. The learned counsel for the applicants argued that the applicants are innocent and have committed no offence. The appellants are continuously in custody for last 11 years. During trial, they remained in jail as under trial prisoners. They were convicted on 20.01.2007 and have preferred this appeal in this court on 7.2.2007. The appeal could not be decided and pending for last more than four years. The appellants are neither previously convicted nor dangerous or desperate criminals but they are very poor persons. It was further averred that in view of the amendment made under Section 426 Cr.P.C, the appellants are entitled to be released on bail during pendency of their appeal in this court.

5. The learned A.P.G. argued that though the newly inserted subsection (1-A) of Section 426, Cr.P.C. gives right to bail on the ground of statutory delay but for that reason, the conduct of the appellants and their counsel is also to be examined for ascertaining the reason of delay. He opposed the grant of bail. However, the learned APG did not argue that the appellants are previously convicted or hardened or desperate criminals.

6. The jail roll was submitted on 11.05.2012 which shows that the appellants Jaffar and Ghulam Qadir both have substantively served their sentences of 11 years, 06 months and 23 days and earned remissions of 07 years, 02 months and 22 days and their remaining portion of sentence is only 06 years 08 months and 15 days with compensation whereas appellant Meer Khan has substantively served his sentence of 09 years and 11 days and earned the remissions of 06 years, 05 months and 12 days and his remaining sentence is 10 years and 07 days with compensation.

7. This appeal was admitted for regular hearing on 07.03.2007 and fixed first time for hearing on 2.11.2007 after more than seven months. The record further shows more than twelve times, the board was discharged and the appeal could not be heard. On 23.11.2007, office was directed to fix the appeal in court to an early date for hearing. Few times matter was adjourned on the ground that state counsel has not received some documents. The matter was also adjourned for want of time. Sometimes jail roll was called and production order was issued. On 21.6.2010 Mr.Kh. Naveed Advocate voluntarily accepted the brief to represent the appellants as on two previous dates only their counsel was not present in court and matter was adjourned. On 13.7.2010, the appeal was heard by the learned single judge of this court but judgment could not be announced and the matter was fixed in the court on 5.8.2010 for hearing of application moved under Section 426 Cr.P.C by one of the appellants Hassan who was granted bail, thereafter, few times urgent applications were moved by the appellants for early hearing and on 19.12.2001, present application under Section 426 CR.P.C was moved and notice was issued to DPG.

8. By virtue of Code of Criminal Procedure (Amendment) Act, 2011, subsection (1-A) has been inserted under Section 426 of the Code of Criminal Procedure 1898, which reads as under:

(1-A) An Appellate Court shall, except where it is of the opinion that the delay in the decision of appeal has been occasioned by an act or omission of the appellant or any other person acting on his behalf, order a convicted person to be released on bail who had been sentenced:

(a) to imprisonment for a period not exceeding three years and whose appeal has not been decided within a period of six months of his conviction.

(b) to imprisonment for a period exceeding three years but not exceeding seven years and whose appeal has not been decided within a period of one year of his conviction; or

exceeding seven years and whose appeal has not been decided within a period of two years of his conviction:

Provided that the provisions of the foregoing paragraphs shall not apply to a previously convicted offender for an offence punishable with death or imprisonment for life or to a person who, in the opinion of the Appellate Court, is a hardened desperate or dangerous criminal or is accused of an act of terrorism punishable with death or imprisonment for life.

9. Though in order to ascertain the cause of delay whether it is on the part of appellant or the State, mechanical calculation is not required to be made. However, after examining the previous order sheets, I am of the firm view that the delay was not caused solely for inaction or lack of concern and or lackadaisical attitude of the appellants but there are many other reasons for the delay for which appellants cannot be held responsible solely for denying or depriving the benefit of subsection 1(A) of section 426, Cr.P.C. In the similar circumstances, I suspended the sentence and granted bail in the case of “Ghulam Mustafa & others versus State” reported in PLD 2011 Karachi 394.

10. Before the suspension of sentence and to grant bail, the legislature has imposed an obligation and responsibility upon the court to first ascertain and examine the cause of delay. A convicted person may be released by the court on bail, except where it is of the opinion that the delay in the decision of appeal has been occasioned by an act or omission of the appellant or any other person on his behalf. This statutory right is subject to the fulfillment of the criteria and decisive factor prescribed under clauses (a) to (c) of subsection (1-A) of section 426, Cr.P.C. which germane to the particular period of sentence and time specified for decision of appeal in which it has not been decided by the court. According to the conditions laid down in the proviso, it is also to be examined essentially whether the person applied for bail is not previously convicted offender for an offence punishable with death or imprisonment for life or a person who in the opinion of appellate court is hardened desperate or dangerous criminal or is accused of an act of terrorism punishable with death or imprisonment for life.

11. It is not mandatory, obligatory and bounden duty of the High Court to have examined the case on merits and should have dilated upon the contentions as agitated in depth while deciding application under section 426, Cr.P.C. for the simple reason that appraisal of evidence in depth is neither warranted nor desirable while, dilating upon and deciding such application. A Court should confine itself to the judgment assailed before it. A thorough scrutiny of evidence and its evaluation should be made while adjudicating upon the appeal as it would be opportune moment for doing so and not while deciding the application moved under section 426, Cr.P.C. as it would be a premature stage. A conviction cannot be set aside while exercising jurisdiction as conferred under section 426, Cr.P.C. on the grounds with reference to evidence and merits of the case which certainly require a thorough probe and deeper scrutiny of evidence which should be avoided. The discretion has to be exercised judiciously by considering the relevant facts without entering into or commenting upon the merits of the case. If the contention raised requires consideration of merits, the Appellate Court would refrain from entertaining such contentions. At this stage, the court cannot enter into a reappraisal of evidence which should be considered at the time of hearing of the appeal. Reference can be made to PLD 2002 Supreme Court 845, “Allanditta Khan v. State”.

12. Before insertion or in fact before restoration of subsection (1-A), the honourable Supreme Court in the case of Makdoom Javed Hashmi, reported in 2008 SCMR 165, held that the accused who had already undergone almost half of his sentence might seek suspension of his sentence in the interest of justice keeping in view the facts and circumstances of a particular case. If ultimately the appeal of accused is dismissed by the appellate court, the provisions of subsection (3) of S.426, Cr.P.C. would come into operation and the period of suspension of sentence would stand excluded and he would have to undergo the sentence awarded to him by the court.

13. The appeal is pending since 07-02-2007 and all the above three appellants have already served substantive portion of their sentences which is much more than the half sentence. It was never argued by the learned APG that the appellants are previously convicted offender for an offence punishable with death or imprisonment for life and nothing is available before this court or even in the impugned judgment to reach an opinion that the appellants are hardened, desperate or dangerous criminal. So far as the cause of delay is concerned, entire delay cannot be attributed to the appellants solely but for various reasons, the appeal was being adjourned from time to time. It is also a fact that all the appellants are lifer and according to clause (c) of subsection (1-A), their appeal has not been decided within a period of two years of their conviction. If ultimately, the appeal of accused is dismissed by this court, the provisions of subsection (3) of S.426, Cr.P.C. would come into operation and the period of suspension of sentence would stand excluded and they would have to undergo the sentence awarded to them by the Court.

14. For the foregoing reasons, the sentence of the appellants is suspended. The appellants are granted bail subject to furnishing solvent surety in the sum of Rs.2,50,000 (Two Lacs Fifty Thousands only) each with P.R. Bonds in the like amount to the satisfaction of the Nazir of this Court. The application is disposed of accordingly.

Karachi:

Dated. 24.5.2012 Judge