2014 PLP 1348 (YLR)

RIAZAT ALI SAHAR, J.

Through listed-application under section 426 Cr.P.C., appellants/ applicants, namely, Muneer Ahmed and Jamil Ahmed seek suspension of their conviction and sentence and release on bail in connection with case in which they were awarded conviction for offence under sections 324, P.P.C. and sentenced to suffer R.I. for 5 years and fine of Rs. 20,000, for offence under section 337-D, P.P.C., they were sentenced to suffer R.I. for 5 years and fine of Rs.5000 as Arsh and for offence under section 337F(ii) to suffer R.I. for 5 years and pay amount of Rs.5000 as Arsh to be paid to injured ladies.

2. It is, inter alia, contended by learned counsel for the appellants/ applicants that after conducting investigation, an enquiry was also conducted whereby appellants/applicants were declared as innocent, but such report was not considered and ignored by learned trial court. He further contended that term of conviction and sentence is short one.

3. Conversely, learned A.P.-G. for the State submits that the trial court has already taken a lenient view while awarding conviction and sentence to the appellants/ applicants, as the punishment provided for offence under section 324, P.P.C. is 10 years but the trial court has awarded conviction and sentence as R.I. for 5 years for said section as well as Arsh.

4. Learned counsel for the complainant submits that case of the prosecution is fully corroborated with evidence of injured prosecution witnesses with direct role of firing upon injured P.W. Mst. Naziran on her right thigh, left thigh and abdomen and Mst. Tehmina on her right side of chest, and right arm. He further contended that medical evidence is in line with ocular testimony, therefore, appellants/applicants are not entitled for concession of bail.

5. I have considered the submissions advanced at Bar and also perused the relevant record which reveals that nothing as to plea of enquiry report, as raised by learned counsel for the appellants/ applicants is available on the record and only memo of appeal along with listed-application was filed annexing certified copy of impugned judgment. Nevertheless, the enquiry report cannot prevail over the investigation. Subsection 1-A was inserted in section 426, Cr.P.C., which reads as under:-- "{I-A an Appellate Court shall, except where it is of 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 this behalf, order a convicted person to be released on bail who has been sentenced:-- (a) .. (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 this conviction. (c) "

6. It is very much clear that the appeal regarding conviction and sentence exceeding three years but not exceeding seven years shall be proceeded within a period of one year and in case of non-proceeding of appeal within stipulated period, right of section 426, Cr.P.C. may be established. Learned counsel for the appellant was clearly offered to proceed with the appeal on the next date of hearing due to non-availability of R&Ps as well as paper book as the appellants/ applicants failed to deposit the paper book cost, which fact too is significant of delay having occasioned for fault of appellants/ applicants, but he insisted to proceed with the application under section 426, Cr.P.C. during course of delay instead of main appeal which shows that he intends to seek mere order on application under section 426, Cr.P.C.

7. It is not a hard and fast rule to allow application under section 426, Cr.P.C. in every case, wherein conviction and sentence comes within short term sentence like as 5 years. Apart from this, sentence of Arsh amount cannot be suspended unless appellants/applicants desire to deposit such amount conditionally before this appellate court and in the instant case, neither appellants/applicants have raised any such desire through memo of application under section 426, Cr.P.C. nor learned counsel for appellants/applicants expressed such desire during course of arguments. Therefore, at this stage, appel-lants/ applicants do not appear to be entitled for concession of bail in terms of suspension of conviction and sentence awarded by learned trial court and accordingly the instant application stands dismissed.

8. However, the appellants/applicants are set at liberty to move fresh application on the ground of statutory delay if main appeal is not heard and decided within stipulated time from the date of payment of cost for preparing the paper book. The office is directed to prepare the paper book on payment of usual cost within a period of 07 days and fix the matter for regular hearing within a reasonable time. HBT/M-15/Sindh Application dismissed.