1978 PLP 149 (SCMR)

DORAB PATEL, J.‑The first respondent and one Nazir Ahmad have been convicted under section 302/34, P. P. C. by the Sessions Court, Sahiwal for the murder of one Azizuddin on 2‑1‑1975 and sentenced to imprisonment for life. Fines were also imposed. the first respondent challenged his conviction in an appeal in the Lahore High Court which has been admitted to regular hearing. And pending the hearing of his appeal the first respondent filed an application for the suspension of the sentence passed against him. A learned Single Judo of the Lahore High Court allowed this application and released the first respondent on bail by big order dated 23‑10‑1977. The petitioner who bas filed a Revision in the High Court for the enhancement of the sentence passed against the first respondent and the said Nazir Ahmad has filed this petition for leave against the High Court's order of 23‑10‑1977. Mr. Bilal who appeared on behalf of the petitioner submitted that the High Court had erred in suspending the sentence against the first respondent under section 426 of the Criminal Procedure Code because the sentence passed was for life imprisonment on a conviction for murder. The submission is fallacious and involves reading into section 426 a qualification which is not contained in it. The section, in so far as it is relevant, reads :‑ "Pending any appeal by a convicted person, the Appellate Court may, for reasons to be recorded by it in writing order that the execution of the sentence or order appealed against be suspended and, also, if he is in confinement, that he be released on bail or on his own bond." There is no ambiguity about the section. The Appellate Court's discretion to grant bail is not fettered or restricted by reference either to the conviction or to the sentence passed against an appellant by the trial Court. But like all discretions vested in the Courts the discretion in this section has to be exercised judicially. However, learned counsel feebly submitted that a contrary view was taken by this Court in Maqsood v. Ali Muhammad and another (1971 SCMR 657), The judgment cited is distinguishable oar the facts and further the Court expressly observed that the question of suspending a sentence under section 426 was within the discretion of the Appellate Court, therefore, it refused to Interfere with the discretion exercised in the case by the High Court. Learned counsel then submitted that the High Court had is tae Instant case exercised its discretion arbitrarily in releasing the first respondent on bail and counsel also feebly attempted to argue that the learned Judge had not given any reasons for releasing the first respondent on bail, therefore, he had erred in interfering with the Sessions Court's order. But although the petitioner relies on the Sessions Court's judgment he has not cared to file a copy of that judgment. Be this as it may, it is clear from the impugned order that the first respondent's conviction was based entirely on circum stantial evidence and the first respondent's plea in the High Court was that this evidence was too weak to support the conviction against him. In order not to pro‑judge the hearing of the bail the learned Judge referred in the impugned order to the fact that the case against the first respondent was based solely on circumstantial evidence. The learned Judge then observe that even according to the Sessions Court some of the evidence relied upon by the prosecution was not relevant to the question of the first respondent's guilt and then went on to observe that the evidence which was relevant was of a weak nature. Presumably, the first respondent's submission that the prosecution had failed to prove its case against him had reference to these observations of the Sessions Court. And, after thus noting the misgiving expressed by the Sessions Court about the evidence against the first respon dent, the learned Judge observed that even "the identity of the dead body had not been established in this case". He, therefore, held that it was a fit case for suspending the sentence of life imprisonment. We have examined this well considered order with Mr. Bilal's assistance and we are satisfied that the learned Judge carefully examined the judgment under appeal and allowed the first respondent's prayer because he was satisfied that that respondent bad made but sufficient cause under section 426, Cr. P. C. It is true that he has not expressly given his assessment of the prosecution case but this was in order not to pro‑judge the hearing of the appeal, therefore, we are also satisfied that on the facts and circumstances of the case the view thus taken was a proper exercise of the Court's discretion under section

426. The petition is without merit and is dismissed. Petition dismissed