2000 PLP 1145 (YLR)

The abovementioned petition has been presented under section 426, Cr.P.C., whereby suspension of sentence is sought during the pendency of appeal.

2. The facts briefly stated are that the petitioners were convicted under section 20 Offences Against Property (Enforcement of Hudood) Act, 1985, and sentenced to rigorous imprisonment for seven years each by District Criminal Court, Mirpur on 30‑6‑1999.

3. It is contended by Mr. M. Y. Tahir, the learned counsel for the petitioners that the trial Court has not appreciated the prosecution evidence in its true perspective and relied upon inconsistent and self‑contradictory evidence. He also pointed out that the stolen log was recovered from the road side whereas the Van was seized from G.T. Road Dinna, thus, front both the abovementioned recoveries the petitioners cannot be connected with the commission of the crime. Therefore, the conviction and sentence is unjustified. The learned counsel further argued that alleged recovery of money was not put to the petitioners during their examination recorded under section 342, Cr.P.C., on this account the conviction is not sustainable in law. The petitioners were enlarged on bail during trial, therefore, the conviction and sentence may be suspended and the petitioners be allowed bail till disposal of appeal, submitted by the learned counsel for the petitioners convicts. In support of his contention he relied upon 1984 PCr. LJ 1222.

4. Mr. Abdul Hameed, the learned counsel for the complainant, vehemently opposed the petition and argued that the petitioners have already misused the concession of bail and committed the murder of the brother of the complainant to take the revenge of the registration of the present case. Thus, they are not entitled to concession of suspension of execution of sentence.

5. Mr. M. Mushtaq Chaudhry, the learned A.A.‑G., defended the impugned judgment and controverted all the arguments advanced by the learned counsel for the petitioners.

6. I have very carefully attended to the submission made at the bar in the light of material available on the record. At the very outset, I may observe that while deciding a petition for suspension of sentence appellate Court would not undertake reappraisal of entire evidence but would confine itself to those infirmities in judgment of trial Court with reference to the grounds argued in memo of appeal which could show that conviction was no sustainable in law. If it appears' on face of judgment from a tentative opinion that the convict has equal chance of acquittal, the' Court can suspend the sentence and the convict can be enlarged on bail. Coming to the present case, without going to the depths of the merits of the case, in my tentative opinion the petitioners failed to make out a case for suspension of the sentence and no prima facie ground is disclosed for substantive doubt about the conviction and there is no likelihood of delay in disposal of appeal up to an unreasonable time. The evidence about the alleged recovery of articles was neither contradictory nor discrepant.

7. It is also admitted between the parties that the convicts are charged with alleged murder of the real brother of the complainant, which was committed during the pendency of the trial of the instant case, while the petitioners were enlarged on bail.

8. It will be useful to mention here that a convict is not to be placed and not treated with accused in same footing while considering question of bail. It is settled principle of criminal law that after conviction the initial presumption is against innocence of convict. Therefore, a person convicted of a non‑bail-able offence by a competent Court is not entitled to be enlarged on bail normally by appellate Court except in special circumstances, discussed above. The case‑law cited by the learned counsel for the petitioners do not render any help to him because of distinguishable facts.

9. For the reasons recorded above, I see no substance in this petition which dismissed. H.B.T./3/Sh.C.(AJ&K)