ORDER SHEET

IN THE HIGH COURT OF SINDH, CIRCUIT COURT, LARKANA

Crl. Appeal No.S-43     of  2013

DATE OF HEARING

 

ORDER WITH SIGNATURE OF HON’BLE JUDGE.

13.08.2013.

For hearing of M. A. No.1674/2013.

Mr. Asif Ali Abdul Razak Soomro, advocate for the appellant.

Mr. Riaz Hussain Khoso, State Counsel.

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NAIMATULLAH PHULPOTO, J.-                   Appellant Jabbar son of Arbab Gopang alongwith others was tried by learned 1st Additional Sessions Judge, Shikarpur, in Sessions Case No.241/2008, for offences under Sections 324, 452, 337-A(i), 337-F(i), 34, PPC, registered vide crime No.61/2008 at Police Station New Foujdari, Shikarpur.  On the conclusion of the trial, appellant and others were convicted and sentenced by Judgment dated 10.7.2013 as under :-

          “In view of my findings given on points No.1 and 2, I feel that offences under Sections 324, 337-A(i), 337-F(iii) and 337-F(v) PPC are brought home to accused (1) Akbar Ali s/o Ali Muhammad (2) Nisar s/o Khair Muhammad and (3) Jabbar s/o Arbab, all by caste Gopang and I convict them under Section 324, PPC and sentence them to R.I for 6 years.  Accused are also fined to the extent of Rs.5000/- each and in case of default of payment of fine they would undergo two months R.I more.  I also convict them under Section 337-A(i) PPC and sentence them to R.I. for two months.  Accused are also fined a daman to the extent of Rs.500/- each. I also convict them under Section 337-F(iii) PPC and sentence them to R.I for 6 months.  Accused are also fined a daman to the extent of Rs.1000/- each.  I also convict them under Section 337-F(v) PPC and sentence them to R.I for 6 months.  Accused are also fined a daman to the extent of Rs.1000/- each.  Amount of daman if recovered shall be paid to above named injured persons.”

 

          2.       Appeal being statutory right filed on behalf of appellant was admitted on 01.8.2013.  An application under Section 426, Cr.P.C was also moved for suspension of the sentence and for release of appellant on bail during pendency of the appeal.  Notice was issued to the Addl. A. G., as well as complainant.  R & Ps were called for. 

          3.       Mr. Asif Ali Abdul Razak Soomro, advocate for appellant Jabbar, contended that appellant and others faced trial under Sections 324, 452, 337-F(v), PPC, but judgment of the trial Court is not in accordance with Section 367, Cr.P.C.  Trial Court has omitted to record finding of guilt or acquittal with regard to the main Section 452, PPC.  It is further argued that 6 years sentence is short one and hearing of the appeal will take long time.  In support of his submissions he relied upon the unreported judgments of this Court in Crl. Appeal No.D-32/2007 dated 21.5.2007, Crl. Appeal No.D-69/2009 dated 30.10.2009 Crl. Appeal No.S-99/2012 dated 14.2.2013, cases reported in 1996 SCMR 3 (Muddassar alias Jimmi Vs. The State) and 2013 Y L R 1779 (Ghulam Rasool & another Vs. The State).

          4.       Mr. Riaz Hussain Khoso, learned State Counsel recorded no objection for the release of the appellant on bail during the pendency of the appeal.

          5.       There is no cavil to the proposition that appellate Court in exercise of its power under Section 426, Cr.P.C. may in appropriate cases, suspend the sentence of a convict and grant him bail pending disposal of his appeal and notwithstanding any material difference in the principle governing for grant of bail under Sections 497 and 426, Cr.P.C. the consideration for suspension of sentence and grant of bail pending trial may not be the same, therefore, the distinction must be adhered to for exercise of power under the above provisions in proper manner.  The power of appellate Court under Section 426(1), Cr.P.C. is not limited and the Court may, pending disposal of an appeal, suspend the sentence of a convict in an appropriate case in its discretion for sufficient reasons but this power of suspension of sentence and grant of bail is not wider than that of under Section 497, Cr.P.C and unless it is shown that conviction is based on no evidence, legal flaws or being based on an inadmissible evidence, is not ultimately sustainable, the grant of bail under Section 426(1), Cr.P.C. could be allowed only on the basis of tentative assessment of evidence. 

          6.       From the perusal of the judgment dated 10.7.2013 rendered by learned 1st Additional Sessions Judge, Shikarpur it transpires that charge was framed against the appellant and others under Sections 324, 452, 337-F(v), PPC and on the conclusion of the trial, appellant, Akbar and Nisar have been convicted under Section 324, PPC for 6 years R.I and to pay the fine of Rs.5000/- each; under Section 337-A(i) PPC, Accused were convicted and sentenced for 02 months R.I and to pay the daman to the extent of Rs.500/- each; Appellant and others were also convicted under Section 337-F(iii), PPC and sentenced to R.I for 06 months and to pay the daman to the extent of Rs.1000/- each; they were further convicted under Section 337-F(v), PPC and sentenced to R.I for 06 months and to pay daman to the extent of Rs.1000/- each.  Absolutely, there is no decision, thereon of acquittal or conviction in respect of Section 452, PPC of trial Court.  Under Section 367, Cr.P.C it was bounden duty of the trial Court to have specified the relevant Section whereunder appellants were convicted and sentenced; nothing should have been left to presumption.  Section 367, Cr.P.C reads as under :-

     “367.—(1) Every such judgment shall, except as otherwise expressly provided by this Code, be written by the Presiding Officer of the Court or from the dictation of such Presiding Officer in the language of the Court, or in English; and shall contain the point or points for determination, the decision, thereon and the reasons for the decision, and shall be dated and signed by the Presiding Officer in open Court at the time of pronouncing it and where it is not written by the Presiding Officer with his own hand, every page of such judgment shall be signed by him.

 

(2)      It shall specify the offence (if any) of which, and the section of the Pakistan Penal Code or other law under which the accused is convicted, and the punishment to which he is sentenced.

 

(3)      When the conviction is under the Pakistan Penal Code and it is doubtful under which of two sections, or under which or two parts of the same section, of that Code the offence falls, the Court shall distinctly express the same, and pass judgment in the alternative.

 

(4)      If it be a judgment of acquittal, it shall state the offence of which the accused is acquitted and direct that he be set at liberty.

 

(5)      If the accused is convicted of an offence punishable with death, and the Court sentences him to any punishment other than death, and Court shall in its judgment state the reason why sentence of death was not passed.

 

(6)      For the purposes of this section, an order under section 118 or section 123, sub-section (3), shall be deemed to be a judgment.”

 

 

          7.       In unreported Crl. Appeal No.D-32/2007 decided on 21.5.2007, sentence of 08 years was suspended; in Crl. Appeal No.D-69/2009 decided on 30.10.2009, sentence of 07 years and 06 months awarded for offence under Section 9(c) of Control of Narcotic Substances Act, 1997 was suspended; in unreported Crl. Apeal No.S-99/2012 decided on 14.2.2013 seven years sentence was awarded and sentence was suspended by this Court.  In case of Ghulam Rasool & another (supra), appellant Ghulam Rasool was convicted under Section 302(b), PPC and sentenced to imprisonment for life and appellant Khair Muhammad was convicted and sentenced for 12 years R.I.  Sentence was suspended.

          8.       Section 367, Cr.P.C is not permissive but imperative and compliance of its terms is mandatory in nature.  Omission of the trial Court for recording the finding/reasons with regard to the Section 452, PPC is apparent on record.  Hearing of appeal might take some time, the sentence being short one, State Counsel has also recorded no objection, while relying upon the above-cited judgments, without touching merits of case deeply, on the basis of tentative assessment of legal flaws on record, this is an appropriate case, therefore, sentence of appellant is suspended during the pendency of the appeal and he shall be released on bail upon his furnishing solvent surety in the sum of Rs.200,000/- (Two Lac) and P.R bond in the like amount to the satisfaction of Additional Registrar of this Court.

          9.       Listed application stands disposed of in the above terms.

 

 

                                                                                                JUDGE               

           

Qazi Tahir/*