2019 PLP 1620 (YLR)

MUHAMMAD SALEEM JESSAR, J.

Through listed application, appellant Hazaro alias Hazar Khan Shar has sought suspension of the sentence awarded to him by the learned V-Additional Sessions Judge, Larkana, vide judgment dated 30.11.2018. In terms of the judgment, the appellant was convicted and sentenced to imprisonment for life with fine of Rs.300,000/-. Learned counsel for the appellant submits that, appellant is an old aged person having age of 82 years (per his CNIC. Besides, the role assigned to him is that of only instigation and that on merits the appellant has a very strong case and there is every likelihood of his acquittal. In support of his contentions, learned counsel placed his reliance upon 1994 SCMR 1712, PLD 2007 SC 564 and 2007 SCMR

992. Conversely, the learned D.P.G. opposed the grant of application on the ground that sentence awarded to appellant is life imprisonment, which does not fall within term of short sentence and that appeal is fresh one, therefore, as per amendment in Section 426, Cr.P.C, his case falls and covered by clause "C" to Section 426, Cr.P.C, hence he does not deserve to be released on bail at this stage of the case. Mr. Athar Abbas Solangi, Advocate appearing for complainant also opposed the prayer of suspending sentence of appellant on the ground that after full-fledged trial the appellant has been convicted and sentenced; that case is fresh one, as such provisions of Section 426, Cr.P.C. do not attract to case of appellant. He further contended that case law cited by the learned counsel for appellant is not identical to the case of appellant, as in all these cases, the High Court had granted bail to appellants therein and such discretion exercised by High Court was not interfered by the Hon'ble Supreme Court. According to him, in these cases, the High Court had granted bail to appellants therein, was on the ground of non-proceeding of their appeal. He relied upon 1997 SCMR 1521 and 2007 SCMR

246. Heard learned counsel for parties and perused the material available on record and gone through relevant law as well as case law cited by the parties' counsel. Before touching merits of the case, it will be appropriate to reproduce relevant section, through which the appellant is seeking his release on bail. "Section 426, Cr.P.C. (1-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 his behalf order a convicted person to be released on bail who has been sentenced:- (a)

(b)

(c) to imprisonment for life or imprisonment exceeding seven years and whose appeal has not been decided within a period of two years of his conviction. The record reveals that the appellant has been convicted through judgment passed on 30.11.2018. The appeal is fresh one, as it has been preferred by appellant on 05.12.2018 through jail authorities. As such, the appellant does not appear to be entitled to be benefited by provisions of Section 426, Cr.P.C., as is manifest in sub-clause "c" of this section, which requires that, if appeal is not decided within a period of two years of conviction, the accused may be released on bail. So for as merits of the case are concerned, it appears that after full-fledged trial the appellant has been convicted and sentenced by the learned trial Court by believing the evidence of witnesses and other material produced by prosecution at trial and by providing opportunity of defence and hearing to appellant. Another contention of learned counsel for appellant is old age of appellant; suffice it to say that it is no ground for suspending his sentence. Moreover, according to medical report furnished by Medical Officer of Central Prison, Larkana, the appellant was referred to CMC Hospital, Larkana, at Neurology department for consultation and better management, where he was admitted in jail ward and after investigation including his MRI he was discharged from jail ward along with oral medication by the consultant. As such, it cannot be said that remaining of appellant in jail would be detrimental to his life. In view of above, the application in hand merits no consideration. Accordingly, it is dismissed. However, the office is directed to expedite process of preparation of paper book and fix main appeal for hearing in Court preferably within two months. SA/H-3/Sindh Application dismissed.