1983 P Cr (PLP)

This application under section 426, Cr. P. C. for the suspension of the execution of the sentence awarded to the petitioner by the District Criminal Court, Poonch and his release on bail pending the disposal of his appeal has arisen in the following circumstances :- The petitioner alongwith few other persons was put on trial for committing the offence of murder under section 302, A. P. C. read with section 5 of the Islamic Penal Laws Enforcement Act, 1974 in the District Criminal Court Poonch which ended in the conviction of the petitioner under section 3 of the aforesaid Act and one of the co-accused, Abdur Razaq, under the same section read with section 109, A. P. C. The petitioner was sentenced to imprisonment for life and a 'Diyyat' of Rs. 80,000 while the said Abdur Razzaq was sentenced to rigorous imprisonment for a period of 10 years. The petitioner filed an appeal against above conviction and sentence in this Court on 1st June, 1981 and alongwith it also moved an application for the suspension of his sentence and his release on bail during the pendency of the appeal. The petitioner's request could not be acceded to and his application was returned to him for the reason of want of jurisdiction as the then Chairman of the Court came to the conclusion that the Shariat Court Ordinance did not confer powers upon this Court to entertain and hear an appeal against the judgment or order of the District Criminal Court. The petitioner thereupon put in an application before the High Court for the grant of bail but while the same was pending there, he filed the present application on the ground that now this Court is fully competent to hear and dispose of his appeal in view of the amendments carried out in the relevant law. The learned counsel for the petitioner has made following submissions in support of this application :- (1) ?????? That on the merits of the case, the appeal is likely to succeed resulting in the setting aside of the conviction and sentence awarded to the petitioner; (2) ?????? that inordinate delay has occurred in the disposal of the appeal of the petitioner against his conviction and sentence as nearly one year has elapsed since the filing of the said appeal but the tame has not been taken up for hearing so for due to the non-?completion of the Court and that there is no immediate likelihood of its being so taken and disposed of in the near future; (3) ?????? that Abdul Razaq, another convict in this case has already been released on bail by the High Court and thus the petitioner also deserves the same treatment from this Court. The learned counsel for the State has vehemently opposed this application. His contention is that the merits of the case cannot be gone into and discussed at this stage when only the question of suspension of sentence and grant of bail is under consideration. He has further argued that in view of the provisions contained in section 497, Cr. P. C. imposing restriction on the grant of bail to the person accused of an offence punishable with death or transportation for life, the petitioner cannot be released on bail as he has been sentenced to life imprisonment and a fine of Rs. 80,000 in a murder case. He has also opposed the application on ground that the delay caused in the disposal appeal of the petitioner can?not be made a ground of the suspension of the sentence and his enlargement on bail. Now 1, in the light of arguments addressed at the bar, the circum?stances of the case and the relevant law, proceed to take up the above grounds urged to support of this application in seriatim :- The contention of the learned counsel for the petitioner that the merits of the case necessitate the suspension of the sentence of the petitioner and his release on bail pending the decision of his appeal has not impressed me. In an attempt to show that the conviction of the petitioner will not rest on the merits of the case, the learned counsel for the petitioner pointed out certain flaws alleged to be appearing in the evidence used against the petitioner by the trial Court and in this connection he has laid much emphasis on the contention that one of the important witnesses, namely, Nasim was given up by the prosecution while another witness, Muhammad Saleem by name who has deposed to have seen the petitioner running away from the place of occurrence soon after the incident, has been substituted for the person originally mentioned in the F. I. R. as his father's name is different from the one named in the F. I. R. At this preliminary stage when only the question of releasing the petitioner on bail is under consideration, it does not appear to be proper to discuss the merits of the case by assessing and evaluating the evidence on record for such a course is likely to prejudice the case of the parties. Suffice it to say that the conviction and sentence of the petitioner has proceeded on the ocular as well as circumstantial evidence and motive for the crime and thus it cannot be said that here is a case of no evidence at all on which no conviction can be maintained. Any comment, either way, on the evidentiary value of the testimony of prosecution witnesses at this stage would not only be improper but also uncalled for and it would, therefore, be fair to and in the interest of both the sides that the Court should refrain from embarking on such a course. In this view of the matter; the counsel for the petitioner's contention, that the petitioner is entitled to be admitted to bail as on the merits of the case he is likely to be acquitted cannot be accepted. So far as the question of the powers of this Court to suspend the sentence of a person convicted and sentenced to death or imprisonment for life is concerned. I fully agree with the learned counsel for the petitioner that this Court is fully competent to grant bail to such a convict. The prohibition contained in section 597, Cr. P. C. on the grant of bail to the person accused of an offence punishable with death or trans?portation for life and pressed into service by the learned counsel for the State is not applicable to an application made under section 426, Cr. P. C. This Court, in I exercise of its powers under the aforesaid action of the Criminal Procedure Code enjoys unfettered powers to release a person on bail during the pendency of his appeal who has even been convicted and sentenced to death or transportation for life for committing an offence of murder and the restrictions placed on the grant of bail to a person accused of an offence punishable with death or transportation for life in section 497, Cr. P. C.. do not stand in the way of the appellate Court acting under section 426, Cr. P. C. But at the same time to say so does not mean that while dealing with a petition B under section 426, Cr. P. C. the provision of section 497, Cr. P. C. imposing bar on the grant of bail in a case specified therein should be altogether overlooked or disregarded and rather on the contrary, the aforesaid provisions should be given due weight and consideration in deciding the question of releasing a person on bail sentenced to life imprisonment, specially on the charge of murder and it should be only for the special reasons existing in the circumstances of a particular case that discretion in favour of allowing bail should be exercised. The petitioners release on bail in this application is mainly sought on the ground that his appeal against his conviction and sentence pending in this Court has not so far been taken up for hearing despite the lapse of a period of one year since its filing and that it is not likely to be heard in the near future, As regards the delay in the disposal of a case being a ground for granting bail to the accused or a convict, it is now settled law that it is not per se a ground unless it is so inordinate as to amount to abuse of the process of law. The above principle of law has been pronounced in chain of cases decided both by the superior Courts of Pakistan as well as Azad Kashmir out of which reference may only be made to the decision reported in P L D 1968 - S C 353 and P L D 1974 S C 224 which have also been cited with approval by our own Supreme Court in criminal miscellaneous petition No. 6/MR of 1981 entitled Fazal Elahi v. Sate. Thus, the question in this petition that arises is as to whether or not the delay caused in the hearing and disposal of the appeal of the petitioner is of such a nature or character which amounts to the abuse of the process of law. After considering the overall circum?stances and facts of the case, I have no hesitation in answering the above question in negative. The extent and nature of the delay in question here cannot, by any stretch of imagination, be designated as inordinate delay amounting to the abuse of the process of law. The learned Counsel for the petitioner in his attempt to make out a case of inordinate delay for the release of petitioner on bail, has relied upon vatious authorities of Superior Courts of Azad Kashmir and Pakistan. As regards our Superior Courts, he has referred to the decisions of High Court in cases entitled Abdul Razag v. State. Sajawal v. State, Abdul Rozag v. State and that of the Supreme Court entitled as Fazal Elahi v. State' but after going through the copies of the above judgment furnished by the counsel for the petitioner, I find that the aforesaid decisions are of no help to the petitioner as the facts in the said cases were quite distinguishable from the one in band. In each of the first two abovementioned cases the sentence awarded to the accused persons therein was only of 'Diyyat' while in .the third case the sentence of only ten years had been awarded to the accused for abetting the commission of the offence of murder. In the last mentioned case decided by the Supreme Court the bail was granted to the convict-petitioner therein not only on the ground of delay in the disposal of his appeal pending there but other special circumstances weighed heavily with the Court is accepting his bail application, especially the fact that initially the said petitioner was convicted and sentenced under sections 304 and 323, A. P. C. by the trial Court but on appeal the said conviction and sentence had been converted into one under section 302, A. P. C. by the High Court. Thus, in the peculiar and special circum?stances of the case, the Supreme Court found it proper to show its indulgence to the petitioner by exercising its discretion in favour of enlarging him on bail during the pendency of his appeal. Similarly, the cases of the superior Courts of Pakistan cited by the learned counsel for the petitioner such as 1968 S C M R 683, 1970 S C M R 291, P L D 1972 Lahore 729 and 1969 S C M R 81, are not applicable to the facts of the present case. In none of the aforesaid cases, the question of grant of bail to a convict came under consideration and the persons granted bail therein were either accused or under-trial prisoners. It is no gainsaying the fact that there is a basic and fundamental difference in the position of an accused person and a convict; the former is presumed to be innocent till he is convicted of the charge while the latter is a person who has been found guilty of committing an offence by a Court of competent jurisdiction after due process of law. Quite naturally, therefore, they cannot be placed and treated on the same footing while considering the question of their enlargement on bail and to me no cannon of justice demands the equal treatment to be meted out to a condemned person and presumable innocent one. After having found no similarity between the cases cited by the learned counsel for the petitioner and the present one, 1 would now like, to consider the present application -on merits on the ground of delay having occurred in the hearing and disposal of the petitioner's appeal. In this case the petitioner has not only been convicted and sentenced to life imprisonment but also to a fine (Diyyat) of Rs. 80,000 for such a heinous offence as murder. The mere fact that the appeal of the petitioner against his conviction and sentence could not be taken up for hearing for about a year due to certain deficiencies in the relevant law or non-completion of the Shariat Court does not, in my view, constitute such an inordinante delay in the disposal of the appeal as to tantamount to the abuse of the process of law thereby furnishing good and sufficient ground for the suspension of his C sentence and bailing him out. No case law could be cited by the counsel for the petitioner where delay of only one year in the disposal of a case was considered as inordinate delay amounting to the abuse of the process of law and made ground for the suspension of sentence of the convict and his release on bail. As stated earlier, the eye-witness account coupled with circumstantial evidence, the evaluation of which is not considered proper at this stage, has formed the basis of the petitioner having been found murderer and, therefore, he does not have any lawful grievance for his detention in jail after his conviction by the competent Court of law. In view of the nature of the charge on which the petitioner has been convicted and the quantum of sentence imposed upon him, the possibility of his escaping the punishment by absconding after his release on bail cannot be ruled out and thus, it appears to be in the interest of justice not to provide him with such a temptation by releasing him on bail. In such like cases, the Court should not readily and leisurely enlarge a convict on bail pending disposal of his appeal unless for some good and sufficient reasons ends of justice demand such gut indulgence in his favour. The last ground-urged by the learned counsel for the petitioner in support of this application to the effect that other convict, Abdul Razaq in this case having been granted bail by the High Court, the petitioner also deserves to be likewise treated, has also no force. In the first place, the above-named convict has not been bailed out by this Court in exercise of its powers under section 426, Cr. P. C. and the question of extending equal treatment to all the convicts in a case by this Court does not arise. Secondly, the said other convict has only been sentenced to imprisonment for ten years on the charge of abetting the offence of murder whereas the petitioner has been condemned as the actual perpetuator of the said crime and sentenced to life imprisonment and a fine to the tune of Rs. 80,

000. Therefore, in view of the difference in the nature of the charges on which the convicts in this case have been convicted and the quantum of sentences imposed upon them, the doctrine of equal treatment to be meted out to equally placed persons in a similar circumstances has no application here. Moreover, the ground which led to the bailing out of Abdul Razzaq by the High Court is not now available to the petitioner inasmuch as there is no likelihood of petitioner's appeal being not taken up for hearing in the near future for the non-completion of the Court or some other legal hitch. The appeal of the petitioner would now be taken up for hearing and disposal in order of its priority on merits. In the last it may not be out of place to mention here that the petitioner's appeal has not been admitted for regular hearing so far in view of which fact, it appears doubtful whether or not the discretionary powers conferred under section 426, Cr. P. C. can be availed of but since the petition is being refused on merits, this question is left to be examined and decided in some similar case in future. For the foregoing reasons, the petition stands dismissed. ??????????????????????? ??????????????????????????????????????????????????????????????????????????????????? Petition dismissed.