2009 P Cr (PLP)

M.A. ZAFAR, J.

Atta Ullah alias Hassan petitioner has filed this petition seeking suspension of sentence and grant of bail during the pendency of the appeal before the Honourable Supreme Court of Pakistan after the grant of leave to appeal by invoking the provision of subsection (2-b) of section 426, Cr.P.C.

2. That the petitioner was involved in case F.I.R. No.341, dated 11-9-2002 registered with Police Station Koh Murree District Rawalpindi under sections 13-B and 20 of the Arms Ordinance, sections 7/21/91 Surrender of Illicit Arms Ordinance and sections 4/5 of the Explosive Act. Petitioner was tried by the learned Judge Anti-Terrorism .Court Rawalpindi Division who vide judgment, dated 31-3-2004 convicted him under section 13-A(2)(c) of the Arms Ordinance and sentenced him to undergo 10 years' rigorous imprisonment with benefit of section 382-B, Cr.P.C.

3. The petitioner filed an appeal in this Court (Criminal Appeal No.148 of 2004) which was dismissed by a learned Division Bench vide judgment dated 12-12-2006 and conviction and sentence recorded by the learned trial Court was maintained.

4. Feeling aggrieved from the conviction and sentence recorded by the two Courts petitioner filed a petition for special leave to appeal in the Honourable Supreme Court of Pakistan (Criminal Petition No.18 of 2007) in which leave to appeal was granted on 24-9-2007.

5. Learned counsel for the petitioner in support of this petition submits that petitioner has been acquitted from the main charge of murder and since leave to appeal has been granted to him by the Honourable Supreme Court of Pakistan, he is entitled to be released on bail in view of jurisdiction vested with this Court under section 426(2-B), Cr.P.C. He relies upon Gokulchand Dwarkadas Moraka v. Emperor AIR 1948 Bom. 377.

6. On the other hand learned counsel for the State submits that by mere grant of leave to appeal by the Honourable Supreme Court of Pakistan to the petitioner, he would not be entitled to be released on bail and petitioner should move the Honourable Supreme Court for his suspension of sentence and grant of bail.

7. Subsection (2-B) of section 426, Cr.P.C. is reproduced as under:-- "Where a High Court is satisfied that a convicted person has been granted special leave to appeal from the Supreme Court against any sentence which it has imposed or maintained, it may, if it so thinks fit order that pending the appeal the sentence or order appealed against be suspended, and, also if the said person is in confinement, that he be released on bail." From bare reading of aforesaid provision of law it is clear that discretion has been left with the Court to suspend the sentence of a convict who has been granted leave to appeal by the Honourable Supreme Court "if it thinks fit" obviously according to the facts and circumstances of the case. The mere fact that petitioner has been granted leave to appeal would not ipso facto give him right to seek the suspension of sentence. "A huge quantity of illicit arms in the shape of a kalashnikov, 3 magazine, 56 bullets and 2 hand-grenades were recovered from the petitioner and two Courts have concurrently found him guilty of the said offence and at this stage it cannot be said that such huge quantity was planted by the police to implicate the petitioner falsely". No special circumstance has been urged for suspension of sentence. Since the matter is pending before the Honourable Supreme Court of Pakistan anymore comments may prejudice the case of the petitioner before the apex Court.

8. This Court pending the appeal of a convict can suspend the sentence under section 426, Cr.P.C. but in cases tried by Anti-Terrorism Court the said powers is not available in view of bar contained in section 25(8) of the Anti-Terrorism Act, 1997. When a Court cannot exercise a power of releasing the accused on bail during the pendency of appeal before it, in our view the said jurisdiction cannot be exercised even after the decision of appeal by invoking provisions of section 426(2-B), Cr.P.C.

9. For the foregoing reasons, there is hardly any good ground to release the petitioner on bail and resultantly, the petition is dismissed on merits as well as not maintainable. H.B.T./A-154/L Petition dismissed.