P L D 2010 Supreme Court (AJ&K) 29 (PLP)

MUHAMMAD REAZ AKHTER CHAUDHRY, C.J.

Through this appeal the appellants have sought annulment of the order of the Shariat Court dated 30.8.2007, whereby the sentence awarded to respondent No.1 was suspended and he was released on bail.

2. Briefly stated the prosecution case is that Karamatullah, complainant, (now deceased), moved an application before S.H.O. Police Station Khuiratta stating therein that he belongs to Dheri Sudhnan. There was a dispute between him and the accused regarding the land so the accused persons have enmity with him. Yesterday on 4-12-2005, the accused Masood removed stones from near the house of complainant. In the evening he came to know about this fact. On 5-12-2007 at 7:00 a.m. Masood came near the house of complainant, from whom the complainant asked that why he removed the stones, upon which the accused infuriated and opened the attack on him. The accused was armed with a hatchet. He inflicted injury with the hatchet on the head of the complainant with the intention to kill him. The complainant fell down and raised noise. After hearing the noise, his brother Muhammad Rashid, sister-in-law Nazir Begum, daughter-in-law Mst. Shamim Akhter, Shaukat, son, and Karamat Hussain, son of Jhaloo, came on the place of occurrence and intervened. The accused Masood, Majid, Sajid, Asghar and Shan Muhammad armed with the hatchets and sticks entered into the compound of the house of complainant. The accused Asghar Inflicted injury with the sharp edge weapon on the head of brother Rashid. The accused Sajid inflicted injury with brick on the head of Shamim Akhter. The accused Majid inflicted injury on the hands and other parts of body of Nazir Begum. The accused Masood also inflicted injuries on both hands of Muhammad Rashid. The accused Asghar inflicted injuries to the complainant with fists and kicks. On this application a case was registered under sections 337-F, 337-A, 147, 148, 149, 324, 448, A.P.C. The complainant succumbed to the injuries and the offence under section 302 A.P.C. was also added.

3. After conclusion of trial the District Criminal Court Kotli found respondent Muhammad Asghar guilty and awarded him sentence of 7 years' rigorous imprisonment under section 324, A.P.C., two years' under section 337-A(2) and one year's under section 448, A.P.C., while the sentence of Arsh amounting to Rs.1,57,561/- was also awarded to him for causing Shuja Mauzah. Feeling aggrieved from the said judgment, Muhammad Asghar along with other convict person filed an appeal in the Shariat Court of Azad Jammu and Kashmir, which is yet pending in the said Court. Meanwhile the respondent and Masood Ahmed moved an application for suspension of the sentence under section 426 Cr.P.C. The leaned Acting Chief Justice of the Shariat Court suspended the sentence awarded to Muhammad Asghar respondent and allowed the concession of bail to him vide judgment dated 30-8-2007. The instant appeal has been filed against the aforesaid judgment of the learned Acting Chief Justice of the Shariat Court.

4. Mr. Abdul Majeed Mallick, the learned counsel for the appellants, argued that the learned Acting Chief Justice of the Shariat Court has wrongly allowed the concession of bail to the respondent, while the respondent came on the scene of occurrence armed with a sharp edge weapon and inflicted injuries on the vital parts of the body of Muhammad Rashid, therefore, he was not at all entitled to the concession of bail. The learned counsel further submitted that the learned Acting Chief Justice of the Shariat Court has given such findings, while disposing of the application under section 426, Cr.P.C., which were not permissible under law. He has stated in his judgment as under: - " ..Opinion of the doctor when seen in view of the seat of the injury, prima-facie, leads to the conclusion that the nature of weapon used is doubtful. An injury inflicted on the head through sharp edged weapon has its own characteristics scope and consequence, therefore, it cannot be said as to what kind of weapon has been used in the commission of alleged offence. To be brief, it may be observed that the story regarding use of sharp edged weapon is doubtful. What I mean to say that it is yet to be resolved that whether it is a case of hurt only or it was an attempt to murder." The learned counsel submitted that the aforesaid findings of the learned Acting Chief Justice were not permissible under law at this stage. The learned counsel further submitted that no reasoning was assigned that why the sentence was suspended and the concession of bail was allowed to the respondent, who actively participated in the occurrence, trespassed into the compound of house of complainant and inflicted injuries on the head of Muhammad Rashid, which is the vital part of the body. Therefore, it is clear that he inflicted injury on the head of Muhammad Rashid with the intention to commit slay and there was no justification at all for suspending the sentence of such a convict person.

5. While controverting the arguments of the learned counsel for the appellants, Ch. Muhammad Taj, the learned counsel for respondent No.1 contended that in the F.I.R. it was stated that the convict was armed with the stick, while it was stated that he inflicted injury with the sharp edge weapon. The learned counsel submitted that it was a sufficient ground for the suspension of sentence because it is yet to be determined that what sort of weapon was used by the person, who inflicted injury on the head of Muhammad Rashid. The learned counsel further submitted that the prosecution has miserably failed to prove the allegation against the respondent and the lower Court has wrongly awarded the sentence of 7 years' rigorous imprisonment to him. The learned counsel further submitted that while considering the application under section 426, Cr.P.C., the Court has to consider the quantum of sentence. As in the instant case the sentence of 10 years' imprisonment has not been awarded to the respondent, therefore, the lower Court has rightly suspended the sentence awarded to him.

6. We have heard the learned counsel for the parties, perused the relevant record and have given our utmost muse to the respective arguments advanced by the learned counsel for the parties.

7. There is difference between the principles for grant or refusal of bail to a convict person and a person who has not been convicted or is yet under trial. A presumption of innocence is in favour of a person, who is facing the trial and not yet convicted by the trial Court. It is well settled principle of law that unless and until a person is not convicted, the presumption of innocence is in his favour. The moment he is convicted by a competent Court of law, then he loses the initial presumption of innocence in his favour. Thus a person, convicted in non-bailable offence by competent Court of law; will normally not be entitled to bail. This view finds support from a case reported as Muhammad Murad v. The State [1986 PCr.LJ 64], which reads as under: - " .It need not be stated here that the initial presumption of innocence in favour of an accused is substantially dislodged upon his conviction by a competent Court of law. Therefore, a person convicted of a non-bailable offence by the competent Court of law will not be entitled to be enlarged on bail normally". In the aforesaid report it has been clearly laid down that a person, who is convicted, shall not normally be released on bail, unless and until some other extraordinary circumstances are found. Some very strong grounds are required for the suspension of sentence. There must be strong and cogent reasoning, through which it can be ascertained that the conviction will not sustain. No doubt that it is the entire discretion of the Court, but the discretion has to be exercised judiciously by considering the relevant facts without entering into or commenting upon the merits of the case. When the contention raised requires consideration of merits, the appellate Court would refrain from entertaining such contention. This view finds support from a case reported as Bashir Ahrnad v. Zulfiqar and another PLD 1992 SC

463. In the instant case the respondent, Muhammad Asghar, was convicted by the trial Court and no extraordinary circumstances have been shown by the Shariat Court while allowing concession of bail to him. The learned counsel for respondent No.1 also could not point out such extraordinary circumstances on the basis of which it could be said that he was entitled for suspension of sentence. It is pertinent to note that the sentence awarded by a Court should not be taken lightly or suspended in a routine. There must be some cogent and solid reasons for suspension of sentence. It would not be out of place to mention here that it came to our notice that the lower Courts are suspending the sentences and allowing the concession of bail to the convict persons just in a routine, while it is the fundamental duty of the Court not to suspend the sentence just in a routine. The lower Court should suspend the sentence only after considering whether the convict has a prima- facie case and the conviction is likely to be set aside in appeal.

8. It is to be noted that an appellate Court should not embark upon the re-appreciation of entire evidence, but should confine its considerations only to the extent of infirmities of the judgment of the trial Court and should ensure that the conviction may not be sustainable under law. This view also finds support from the aforesaid report in 1986 PCr.LJ 64, which reads as under:

" Therefore, in my view the Court, normally, will not undertake reappraisal of entire evidence in the case at that stage but will confine its consideration to those infirmities in the judgment of trial Court with reference to the grounds urged in the memo. of appeal which would show that the conviction and sentence is not sustainable in law. The appellate Court upon reading of the judgment of the trial Court and the memo. of appeal can tentatively reach the conclusion that the conviction of the appellant is not likely to be sustained upon the reasoning contained in the judgment of trial Court which are discoverable without deeper and close examination of the evidence." The aforesaid report clearly contains that the appellate Court by reading the judgment of the trial Court and the memorandum of appeal can tentatively reach on the conclusion that the conviction of appellant is not likely to be sustained upon the reasonings advanced in the judgment of the trial Court and as such is discoverable without deeper and close scrutiny of evidence. Nothing like such is stated in the case in hand, rather the learned Acting Chief Justice of the Shariat Court has given such remarks which were not permissible at this stage. He has conducted the meticulous appreciation of evidence and stated in the impugned judgment that:- " . The nature of weapon used is doubtful. An injury inflicted on the head through sharp edged weapon has its own characteristics scope and consequence, therefore, it cannot be said as to what kind of weapon has been used in the commission of alleged offence." While such kind of deeper appreciation of evidence at this stage was not permissible at all.

9. The powers conferred upon the appellate Court under section 426, Cr.P.C. to suspend the sentence, pending the hearing of appeal, are not wider than the powers to release a person on bail during the trial because when a person is convicted, then he shall not be entitled to avail the benefit of initial presumption of innocence. Thus when a person is convicted, then he has to prove before the Court that prima-facie the sentence awarded to him by the trial Court shall be set aside. While considering an application for suspension of sentence, the discretion has to be exercised judicially by considering the relevant facts without commenting on the merits of the case. If the contentions raised requires consideration of merits, the appellate Court should refrain from entertaining such contentions. The Court cannot enter into re-appreciation of evidence, which could be considered at the time of hearing of appeal. This view finds support from a case reported as Farhat Azeem v. Waheed Rasul and others PLD 2000 SC 18 which reads as under: "The discretion has to be exercised judicially by considering the relevant facts without commenting on the merit of the case. If the contention raised requires. consideration of the merits, the Appellate Court would refrain from entertaining such contentions. The Court cannot enter into a re-appraisal of the evidence which should be considered at the time of hearing of the appeal. But, where on perusal of the facts and judgment impugned, the Court comes to the conclusion that the judgment suffers from any legal error, it would be justified to suspend Cite sentence and grant the bail. In this regard the reasonable and legal views expressed by the trial Court should be given due consideration and weight, but every effort should be made to' ensure that neither the evidence is re-appraised nor the merits of the case are discussed." In the aforesaid report it has been stated that the Court should refrain from reappraisal of evidence and discussion on merits, while in the instant case the learned Acting Chief Justice of the Shariat Court has re-appreciated the evidence and discussed the merits of the case. He has also given the finding that it cannot be said that what kind of weapon has been used in the instant case, while there are eye-witnesses who have deposed that sharp-edge weapon has been used by the accused and this version is supported by the doctor.

10. It is pertinent to note that bail is a concession which is meant for those noble and respectable persons, who have been roped into a case falsely and the evidence against whom is not reliable and sufficient. In a case where the conviction has been recorded, the appellate Court should be more alert and cautious while suspending the sentence and allowing the concession of bail. It should not take it lightly and adopt it as a routine, otherwise it will be engender of encouragement to vandalism. If we allow such like concession without any solid and cogent reasoning, then the lachrymose maledictions of poor victims will ruin us.

11. The compendium of above discussion is that this appeal is accepted and the order of the learned Acting Chief Justice of the Shariat Court dated 30-8-2007 is set aside. The respondent, Muhammad Asghar, shall be taken into custody and sent to jail. Before parting with the judgment, it also could not be ignored that no one should be kept in jail for an unlimited period. Therefore, the Shariat Court is directed to dispose of the appeal within the period of thirty five days from the date of receipt of file under intimation to the Deputy Registrar Supreme Court Circuit Mirpur. H.B.T./2/SC(AJ&K) Appeal accepte