2017 P Cr (PLP)

MUHAMMAD SALEEM JESSAR, J.

By means of instant application under section 426, Cr.P.C. the Appellant Bhutto Kolhi, seeks suspension of his sentence and release on bail. The instant application is arising out of Cr. Appeal No.S-53/2014, whereby the appellant has assailed impugned judgment dated 31.3.2014 passed by learned Assistant Sessions Judge, Matli, in Sessions Case No. 124/2012 (old) and Sessions Case No.04/2012 (new) Re: State v. Bhutto and others, being subject matter of Crime No.82/2012, registered with Police Station Matli, for offences under sections 324, 504, 506, 337-A(i), 337-F(i), P.P.C., the Appellant has been convicted and sentenced for the offence punishable under sections 324, 337-A(i), 337-F(i), P.P.C., Rigorous Imprisonment for five years with fine of Rs.50,000/-. In case of failure of fine payment he would undergo further Simple imprisonment for 03 months more. He has been convicted for the offence under section 337-A(i), P.P.C. for causing injuries on the head of Kahilo for 03 years and Daman of Rs.20,000/-. In case of non-payment of Daman to victim/injured he shall remain and considered as simple prisoner. He has further been convicted for offence under section 337-F(i), P.P.C. and has been sentenced to Rigorous Imprisonment for one year with fine of Rs.20,000/- as Daman shall be paid to victim/injured. In case of failure of Daman he will be treated as simple prisoner till payment of Daman. However, the co-accused Danoo and Babar were acquitted from the charge as no case was made out against them. Learned counsel for the Appellant submits that during trial proceedings the Appellant was all along on bail till his conviction, the conviction and sentences awarded to Appellant are short one being five years. He further contended that according to FIR the co-accused Babar and Danoo caused lathi blows to injured Kahilo on his person and the prosecution miserably failed to establish its charge against those (since acquitted) although they were assigned causing role of lathi blows to injured on his person. He further submitted that the trial court has not appreciated the evidence and material made available before it. While passing impugned judgment subsequently awarding/imposing the amount of Daman against the Appellant was not justified. Per learned counsel according to FIR only he allegedly caused hatchet blow to injured PW Kahilo and the injuries attributed to co-accused (since acquitted) are not defined and Daman was to be imposed against co-accused as such impugned judgment suffers from many infirmities. He further submitted that the Appellant is in custody from the date of conviction and per Jail Roll furnished by concerned jail dated 15.12.2014, and up-to-date he almost has served out more than half of the sentence viz-a-viz 03 (three) years without remission which is major portion of entire sentence, but his appeal is not being heard because of heavy backlog of cases available on the board of this Court. He further submitted that Appellant had allegedly inflicted the injury which carries imprisonment of 05 years besides Arsh, whereas the trial court has imposed Daman amount thus according to him there are brilliant chances for success of his appeal. He finally submits that the question of imposing of Daman amount would be determined at the time of final hearing of the instant appeal and at present, particularly when more than 03 (three) years; the Appellant has remained in custody, his appeal has not been decided, the case of appellant falls in 2nd category of section 426(1-A), Cr.P.C. and is entitled to be released on bail under section 426, Cr.P.C. He in support of his contention has placed reliance on case law reported as Nazeer Ahmed and 2 others v. The State (2005 PCr.LJ 657), Muhammad Afzal and another v. The State (1994 SCMR 453), Liaquat and another v. The State (2014 YLR 484) and Ghulam Rasool and another (2013 YLR 1779). On the other hand Mr. Wali Khan, learned Advocate for the complainant has vehemently opposed the application on the ground that 05 (five) years punishment does not fall under the ambit of short sentence as such the Appellant is not entitled for the concession of bail in terms of section 426, Cr.P.C. He in support of his contentions relied upon the case law reported as Makhdoom Javed Hashimi v. The State (2007 SCMR 246) Manzoor Ahmed v. Fazal Ahmed and 3 others (2013 SCMR 1403), Muneer Ahmed and another v. The State (2014 YLR 1348) and Allah Warrayo alias Jabbal v. The State (2010 YLR 1178). Learned A.P.G appearing on behalf of the State while adopting arguments of learned counsel for the complainant has also opposed the application. Heard arguments, perused the record minutely as well as Jail Roll furnished by concerned Jail dated 15.12.2014, with the assistance of learned counsel for the parties. For convenience of the appellate Courts to exercise their jurisdiction cum powers vested under section 426, Cr.P.C., the legislature had divided sentences in three grades. Therefore, it will be advantageous to reproduce the contents of section 426, Cr.P.C.

426. Suspension of sentence pending appeal: Release of appellant on bail. (1) 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. "[(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) to imprisonment for a period not exceeding three years and whose appeal has not been decided within a period of six months of his conviction. (b) to imprisonment for a period exceeding three years but not exceeding seven years and whose appeal has not been decided within a period of one years of his conviction; or (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. Instant appeal was filed before this Court on 21.4.2014 and more than 16 months have been passed but it has not been decided as such his case falls under the 2nd category/ gradation of section 426(1-A), Cr.P.C. Admittedly the Appellant was all along on bail before trial court at the time of conviction and after conviction, he has served out major portion of his sentence vis-a-vis more than 03 years excluding the remissions. Since the co-accused who too were assigned the role of causing lathi injuries to injured PW-Kahilo have been acquitted from the charge. Therefore, question of imposition of Daman amount will be decided and determined at the time of final hearing of main appeal. Looking to the heavy backlog and pendency of the cases on the board of this Court, it appears that appeal of Appellant would take sufficient time in its hearing. In the circumstances and in view of citation (supra) the Appellant has successfully made out a case for suspension of his sentence. Consequently, in view of above, the instant application bearing No.2889/2014 is allowed. The operation of impugned judgment dated 31.03.2014 is hereby suspended till final decision of main appeal. Appellant shall be released on bail upon furnishing his solvent surety in the sum of Rs.100,000/- (One Lac) and PR bond in the like amount to the satisfaction of Additional Registrar of this Court. M.A. No. 2889/2014 stands disposed off. JK/B-17/Sindh Sentence suspended.