ORDER SHEET

IN THE HIGH COURT OF SINDH, CIRCUIT COURT,

HYDERABAD.

Cr. Appeal No. D – 120 of 2014.

DATE ORDER WITH SIGNATURE OF JUDGE

24.04.2015.

FOR HEARING OF M.A.5774/2014.

Syed Madad Ali Shah, Advocate for the appellant.

Mr. Amjad Ali Sahito, Advocate for the complainant.

Syed Meeral Shah Bukhari, D.P.G. for the State.

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This is an application under section 426 Cr.P.C. seeking suspension of sentence of appellant Abdul Hameed and grant him bail during pendency of this appeal.

2. The appellant Abdul Hameed was convicted and sentenced to suffer life imprisonment and to pay compensation of Rs.100,000/- to the legal heirs of both deceased vide impugned judgment dated 10.7.2014 passed in Sessions Case No.196 of 2009 (Crime No.40 of 2009) lodged under section 302, 109, 34 PPC at Police Station Daur. Since the appellant Abdul Hameed during trial was on bail, therefore, his bail bond was cancelled and surety was discharged while the co-accused Illahi Bux was sentenced to death and his separate criminal Appeal No.D-68 of 2014 is also pending along with confirmation case.

3. The learned counsel for the appellant Abdul Hameed argued that the name of Abdul Hameed was not mentioned in the F.I.R. and no overt act or any role was assigned to him. The incident took place on 16.5.2009 but in the further statement of complainant recorded on 19.5.2009, he implicated the present appellant with the allegation that co-accused Illahi Bux committed the murder on the instigation of the appellant. Even in the trial no evidence was brought on the record against Abdul Hameed nor any recovery was made from him. Neither the appellant was present at the scene of crime nor any case was proved against him even then the trial court sentenced him for life imprisonment. It was further averred that only allegation against accused Abdul Hameed is that he was looking after the affairs of Madarsa Darul Uloom Azizia and he was removed by complainant brother Abdul Rasheed as such he became annoyed. The learned counsel for the appellant also pointed out the deposition of the complainant Abdul Shakoor available at page 64 of the paper book in which he clearly admitted as under:-

“It is correct that name of the accused Abdul Hameed that under his instigation accused Illahi Bux committed murder of my brother and Irfan is not mentioned in the F.I.R. It is correct that in F.I.R. it is mentioned that at that time of an unidentified person was also available at venue of the incident having pistol in his hand. It is correct that it is also mentioned in the F.I.R. that unidentified person was seen on the light of bulbs and could be identified if seen. It is correct that in F.I.R. it is mentioned that accused Illahi Bux along with an unidentified person took out pistols from the folds of their shalwars and accused Illahi Bux fired upon my brother Abdul Rasheed from driver side gate. It is correct that in my further statement produced as Ex.5.B, it is mentioned that accused Illahi Bux was alone at the time of commission of the offence.”

4. Mr. Amjad Ali Sahito, learned counsel appearing for the complainant in his honest and fair opinion conceded that the murder was committed by the Illahi Bux but no evidence is available against appellant Abdul Hameed who was also convicted for life imprisonment. The learned D.P.G. also of the view that after going through the impugned judgment as well as the statement of the complainant and further statement it is clear that nothing was placed on record to show appellant’s involvement in the case or the commission of offence or the allegation of instigation.

5. The power of appellate court under section 426 (1) is not limited and the court may, pending disposal of appeal, suspend sentence of a convict in an appropriate case in its discretion for good and sufficient reasons but such power of suspension of sentence and grant of bail is not wider than that section 497 Cr.P.C. Unless it is shown that conviction is based on no evidence or being based on an inadmissible evidence, is not ultimately sustainable the grant of bail under section 426 (1) Cr.P.C. with the consideration or ascertaining the question of guilt or innocence on merits through appraisal of evidence is not justified as bail either under section 497 or 426 (1) Cr.P.C. can be allowed only on the basis of tentative assessment of evidence. Reference can be made to P.L.D. 2000 S.C. 483. In the case of Raja Shamshad Hussain reported in P.L.D. 2007 S.C. 564, the apex court held that “the existence and non-existence of reasonable grounds for believing that person is guilty of the offence and the scope of further inquiry in section 497 Cr.P.C. are the criteria/hallmarks and for arriving at such conclusion tentative assessment and not minute or detailed assessment of evidence has been made permissible. In case of suspension of sentence only tentative assessment of available evidence and of judgment is permissible and detailed appraisal of evidence is to be avoided”. It is well settled that deeper appreciation of evidence is not required for suspension of sentence and the question of culpability of accused would require serious consideration at the time of hearing of the main appeal. Reference can be made to 2012 S.C.M.R. 68.

6. According to our tentative assessment of the material available on record so also the findings recorded in the impugned judgment against the present appellant needs to be thrashed out to reach just and proper conclusion whether the impugned judgment is based on non-reading or misreading of evidence and his question of culpability requires serious consideration at the time of hearing of the main appeal, however in the present circumstances, we are of view that he is entitled to be released on bail for which the learned counsel for the complainant and DPG have already endorsed no objection.

7. As a result of above discussion the application is allowed. The sentence of appellant “Abdul Hameed” is suspended and he is granted bail subject to furnishing one solvent surety in the sum of Rs.500,000/- (Five Hundred Thousands only) with P.R. bond in the like sum to the satisfaction of Additional Registrar of this Court.

Judge