P L D 1967 Lahore 1302 (PLP)

Hata and seven others were convicted under sections 148, 323 and 325 read with section 149, P. P. C. and were awarded various terms of imprisonment. The convicts have appealed. An application was also put in under section 426(1). Cr. P. Code, on behalf of the convicts praying that the execution of the sentences be suspended and they be released on bail pending the decision of the appeal

2. This application raises an important question viz. whether a person convicted of a bailable offence and who has filed an appeal against the conviction and sentence is entitled to bail as a matter of right" To begin with, I may refer to the relevant provisions of the Statute which are contained in sub section (2‑A) of section 426, Cr. P. C. and read as under:‑ "2‑A. When any person other than a person accused of a non‑bailable offence is sentenced to imprisonment by a Court and an appeal lies from that sentence, the Court may, if the convicted person sentence the Court that he intends to present an appeal, order that he 17e released on bail, for a period sufficient in the opinion of the Court to enable him to present the appeal and obtain the orders of the appellate Court under subsection (1) and the sentence of imprisonment shall, so long as he is so released on bail, be deemed to be suspended." Subsection (2‑A) was inserted by the Code of Criminal Procedure (Amendment) Act, 1945 (IX of 1945,

3. By the introduction of subsection (2‑A) of section 426, Cr. P. Code, the powers to release on bail have also been extended to the Court who tried the case and awarded the sentence in bailable offences, on the condition that the convict intends to file an appeal against the conviction. Of course, it 9 is the duty of the original Court to fix the period which, in its opinion, is reasonably sufficient for the convict to prepare and present the appeal in the appellate Court and also to obtain the necessary orders of the appellate Court under subsection (1) of section 426, Cr. P. Code.

4. The language in which subsection (2‑A) of section 426, Cr. P. Code has been couched, would show that the discretion of the original Court convicting a person of a bailable offence is dependent on its satisfaction that the convict actually intends to present an appeal. Therefore, if the original Court is assured that the convict intends to present an appeal against B the order of conviction, the Court is bound to admit the convict to bail. The use of the word `may' in this subsection makes it obligatory for the accused to apply to the Court of original jurisdiction, for the exercise of this discretion. The word may is only used to cover such cases, otherwise the word `may' used in this subsection has the meaning of shall or must.

5. It must also be remembered that an appeal is not a new trial but is a continuation of the trial already held or a part of the trial of an offence undertaken by the Court of the first instance. Hence an appellate Court has power to pass such order or inflict a sentence which was within the power of the C original Court who tried the case. As such the provisions as contained in section 496, Cr. P. Code, shall apply to the case of a person convicted of a bailable offence. I may with advantage refer to the following observations of their Lordships of the Supreme Court in case Mian Mahmud Ali Qasuri and others v. The State (P L D 1963 S C 478) :‑ ". . . The policy of the Code seems to be that in the case of bailable offences the person accused has the indefeasible right to grant of bail subject of course to satisfactory sureties being offered, if sureties are considered necessary. There is admittedly no provision in the Code permitting cancellation of such a bail. Bail is not a mere privilege in such cases but a right of the subject whose liberty is regarded as a precious asset to be preserved undiminished. If, of course, the person enlarged on bail suborns witnesses there may be other remedies at law open against ‑ him, e.g. contempt proceedings or conceivably even proceedings to bind him over to keep the peace or be of good behaviour in certain circumstances. But to hold that on such grounds the bail granted under section 496 of the Code can be cancelled, amounts to saying that the High Court possesses inherent power too override the express provisions of the Code. Such a conclusion would be contrary to principle and finds no support from any other authority In another case reported as Abdul Habib Khan and another v. Emperor (A I R 1928 All. 211) Dalai, J., made the following observations:‑ . . . However serious an offence may be, if it is bailable and there is no reason, such as the likelihood of the applicant absconding if released on bail, the seriousness of the offence would not alone justify a Court in refusing bail to which a convicted person is entitled under the law."

6. For these reasons, I hold that a person convicted of a bailable offence and who has filed an appeal against the conviction and sentence is entitled to bail as a matter of right.

7. I released the petitioners on bail by my short order of even date and this judgment contains the reasons thereof. K.M. A. Bail granted.