1992 PLP 1903 (SCMR)

AJMAL MIAN, J.‑‑‑This is a petition for leave to appeal against the order dated 20‑5‑1992 passed by a Division Bench of the Lahore High Court in Criminal Misc. Nos.7 and 8 of 1992 filed by the petitioner seeking suspension of the sentences including life imprisonment awarded by the learned Punjab Special Court for Speedy Trial No.1 under the judgment dated 18‑1‑1989 under section 426 (1‑A) of Cr.P.C. during the pendency of the appeal before ‑the Lahore High Court, declining the same on the ground that the petitioner's earlier two applications were rejected by the High Court through orders dated 2‑2‑1991 and 13‑3‑1991. The petitioner has, therefore, filed the present petition for leave to appeal.

2. In support of the above petition, Sardar Muhammad Latif Khan Khosa, learned ASC appearing for the petitioner has vehemently contended that the learned Judges of the Division Bench were not justified to decline the petitioner's above applications as he has been in Jail for nearly four years after the filing of his appeal in the High Court and, therefore, the petitioner was entitled to seek suspension of the sentences by virtue of clause (c) of subsection (1‑A) of section 426, Cr.P.C. In order to appreciate the above contention, it may be pertinent to reproduce above subsection (1‑A) with its above clause (c) of section 426 and subsection (1) of section 497 with its 3rd and 4th provisos of Cr.P.C. which read as follows:‑‑-- Section 426, Cr.P.C: ‑‑(1‑A) "An appellate Court shall, unless for reasons to be recorded in writing it otherwise directs, order a convicted person to be released on bail who has been sentenced‑‑ (a) .............................................. (b) .................................................. (c) to imprisonment for life or imprisonment exceeding seven years and whose appeal has not been decided within a period of two years of his conviction." Section 497, Cr.P.C:--‑(1) When any person accused of any non‑bailable offence is arrested or detained without warrant by an officer‑in‑charge of a police station, or appears or is brought before a Court, he may be released on bail, but he shall not be so released if there appear reasonable grounds for believing that he has been guilty of an offence punishable with ,death or imprisonment for life or imprisonment for ten years: Provided that

Provided that

Provided further that the Court shall, except where it is of opinion that the delay in the trial of the accused has been occasioned by an act or omission of the accused or. any other person acting on his behalf, direct that any person shall be released on bail‑‑ (a) who, being accused of any offence not punishable with death, has been detained for such offence for a continuous period exceeding one year and whose trial for such offence has not concluded; or (b) who, being accused of any offence punishable with death, has been detained for such offence for a continuous period exceeding two years and whose trial for such offence has not concluded: Provided further that the provisions of the third proviso to this subsection shall not apply to a previously convicted offender or to a person who, in the opinion of the Court, is a hardened, desperate or dangerous criminal,"

3. A perusal of the above subsection (1‑A) with its clause (c) indicates that an, appellate Court is required to release convicted person on bail if he has been awarded imprisonment for life or imprisonment exceeding seven years and his appeal has not been decided within a period of two years of his conviction unless, the appellate Court for the reasons to be recorded directs otherwise. It may further be observed that subsection (1) of section 497, Cr.P.C. and its 3rd and 4th provisos deal with a case, in which trial has not commenced and/or has not been completed. It empowers the Court to release any person accused of any non‑bailable offence if he is arrested or detained without warrant or who appears or is brought before it, but it further provides that such person shall not be so released if there appear reasonable grounds for believing that he has been guilty of an offence punishable with death or imprisonment for life or imprisonment for ten years. However, 3rd proviso to the above subsection (1) of section 497 lays down that the Court shall except where it is of the opinion that the delay in the trial of the accused has been occasioned by an act or omission of the accused or any other person acting on his behalf, release such person, if he is charged with an offence punishable with death and his trial has not been concluded within a period of two years during which the accused remained continuously under detention. It may further be pointed out that 4th proviso places an embargo upon the above 3rd proviso by providing that the 3rd proviso shall not apply to a previously convicted offender or to a person who, in the opinion of the Court is a hardened, desperate or dangerous criminal.

4. There seems to be a marked distinction between subsection (1‑A) of section 426, Cr.P.C. and subsection (1) of section 497 with its above provisos inasmuch as under the former the appellate Court for the reasons to be recorded can decline to suspend sentence or release a convict on bail even upon the expiry of two years period and the reasons which are to be recorded are not specified therein, whereas under the latter provision, the benefit of the 3rd proviso can only be denied if the accused falls within the categories specified in proviso 4 i.e. he is a previous convict or in the opinion of the Court' he is a hardened, desperate or dangerous criminal. In other words, under the former provision, the Court has more discretion in the matter as compared to the‑latter provision. The reason for providing as such appears to be obvious, namely, subsection (1) of section 497, Cr.P.C. is to be pressed into service before a trial is concluded and it is not certain at that stage whether the‑trial will culminate in conviction, whereas subsection (1‑A) of section 426, Cr.P.C. is to be invoked after a competent Court of law after trial records conviction on the basis of evidence, therefore, the Court has been empowered to decline to suspend the sentence or grant bail for any reason which it may consider just and proper. However, such a reason should have nexus with the paramount object to avert commission of any further offence by the convict.

5. In the present case, the High Court in its earlier order dated 2ndlB February, 1991 had declined to release the petitioner on bail under clause (c) of subsection (1‑A) of section 426, CI.P.C. for the reason that the petitioner alongwith his four co‑accused was convicted for murdering Akbar Ali aged 14 years and Qasim aged 15/16 years and after the commission of the above murder their father Muhammad Din was also murdered during the pendency of the present case. It seems there are counter‑murder cases between the parties and therefore, we are inclined to agree with the High Court that it was not a fit case for pressing into service clause (c) of subsection (1‑A) of section 426, Cr.P.C. The impugned order does not suffer from any infirmity and therefore, leave is refused. RUSTAM S. SIDHWA, J.‑‑‑I agree with the final order proposed by my learned brother Ajmal Mian, J., but would like to add a few words.

2. Section 426(1‑A), Cr.P.C. grants to the appellate Court the power to release a convicted person on bail whose appeal has not been decided within varying periods of his conviction as stated in clauses (a) to (c) thereof, unless for reasons to be recorded in writing it considers otherwise. It is, therefore, clear that notwithstanding the lapse of the period of time stated in clauses (a) to (c), the Appellate Court has discretion to refuse to suspend the sentence, for reasons to be recorded in writing. This Court in Manzoor Hussain v. State (1982 SCMR 357) has held that where the High Court in its discretionary jurisdiction has not thought it fit to suspend the sentence, no justification exists to interfere with such discretion, particularly where it has been properly exercised. This rule has been consistently followed, such as in Abdur Rashid v. State (1988 SCMR 149). In, Abdur Razzaq v. State‑(1983 SCMR 234), this Court commented that inordinate delay did not create any right to the suspension of the sentence under section 426(1‑A), Cr.P.C., for if' this argument were accepted, it would imply automatic release on bail of convicts in all casts, which, in any case, was not the intention of the law.

3. In the instant case the learned Judges of the High Court have given reasons for refusing to suspend the sentence and since there have been cross cases on either side, I also would not like to interfere with the discretion exercised by the learned Judges of the High Court. M.B.A./5‑696/S Leave refused.