2016 PLP 1 (YLRN)

S.426

Suspension of sentence pending appeal

Adjudication of application under S.426, Cr.P.C.

Scope

Not mandatory and essential to examine entire evidence, merits and demerits of appeal while dealing with application under S.426, Cr.P.C.

In the present case, due to backlog of cases, hearing of appeal would not be possible in near future while sentence awarded to accused fell within ambit of "short sentence" (Three years)

Accused, in circumstances, succeeded to make out case for enlargement on bail

Application under S.426, Cr.P.C. was accepted and sentence awarded to accused by Trial Court was suspended, accordingly. [Paras. 7 and 8 of the judgment] 1971 SCMR 1; 1971 SCMR 511; 2012 PCr.LJ 387; 2008 MLD 312 and 2007 YLR 1297 ref. Ms. Naheed Qamar for the Complainant. Shahzado Saleem, APG for the State. ORDER SHAHNAWAZ TARIQ, J.

Through the captioned application under section 426, Cr.P.C. the appellant Murad Bux has sought the suspension of his sentence and release on bail till disposal of the main appeal.

2. Precisely, the facts narrated in the instant appeal are that the complainant Mst. Niazmeen moved application dated 27-04-2010, to the Special Judge Anti-Corruption (Provincial), Karachi, alleging that the appellant got his appointment as Police Constable in Police Department on the strength of a forged matriculation certificate, and deprived his step brother, sister and mother from their shares of the property, and also implicated them in a false FIR. After calling report from police, the trial Court converted said application into Direct Complaint against the appellant. The learned trial Court concluded the trial and convicted the appellant vide judgment dated 16.10.2014, under section 468, P.P.C. r/w section 5(2) of Prevention of Corruption Act, II, 1947, for three years R.I. and fine of Rs.50,000, in case of default, to further undergo six months S.I. The appellant was further convicted under section 471, P.P.C. r/w section 5(2) of Prevention of Corruption Act, II, 1947, for two years R.I. Both the sentences will run concurrently, and the benefit under section 382-B, Cr.P.C. was also extended.

3. Learned counsel for the appellant submitted that the appellant is innocent and was falsely implicated. He contended that the learned trial Court committed gross illegality and irregularity by ignoring the procedure prescribed for the direct complaint in section 200, Cr.P.C. as neither the statement of the complainant nor statements of witnesses were recorded while converting the application of the complainant into direct complaint. He further submitted that the trial Court had illegally taken the cognizance of the family dispute under the provisions of anti-corruption law, as there were no allegations of receiving or demanding of illegal gratification against the appellant. The issue of obtaining service on the basis of fake document is beyond the jurisdiction of the trial Court, even though the appellant had not misappropriated any government amount. He also contended that the alleged offence does not fall within the definition of section 5(2) of Prevention of Corruption Act, II, 1947.

4. Learned counsel further submitted that the trial Court convicted the appellant under sections 468, 471, P.P.C. r/w section 5(2) of Prevention of Corruption Act, II, 1947 instead of passing separate sentences for each offence. He further submitted that official witnesses failed to produce the complete official record in order to testify and authenticate the photocopy of the certificate to prove the guilt of the appellant. He also submitted that the appellant is a Government employee and the required approval from the Government for submission of Challan under anti-corruption law was not obtained from the competent authority. He lastly contended that the appellant was convicted for short sentence i.e. three years R.I. with fine of Rs.50,000/- as such he be released on bail. He relied upon 1971 SCMR 1, 1971 SCMR 511, 2012 PCr.LJ 387, 2008 MLD 312 and 2007 YLR 1297.

5. Learned APG and learned counsel for the complainant opposed the plea of bail and submit that appellant be directed to proceed the main appeal as the relevant documents are already available on record.

6. Perusal of the record and considering the arguments advanced by the learned counsel for the appellant reflect that the appellant was convicted under sections 468/471, P.P.C. read with section 5(2) of Prevention of Corruption Act, II, 1947, for 3 years and 2 years, respectively, with fine of Rs.50,000 and both the sentences will run concurrently. The counsel for the appellant pointed out certain legal objections pertaining to the merits of the direct complaint and the manner in which jurisdiction was exercised and cognizance was taken by the learned trial Court, which requires serious consideration.

7. It is well settled that it is not mandatory and essential to examine the entire evidence, and merits and demerits of the appeal while dealing with the application under section 426, Cr.P.C. It is significant to mention that due to the backlog of the cases, the hearing of appeal would not be possible in near further, while the sentence awarded to the appellant falls within the ambit of short sentence.

8. Considering the above facts and circumstances, the appellant has succeeded to make out his case for enlargement on bail. Consequently, instant application under section 426, Cr.P.C. is accepted and the sentence awarded to appellant by the learned trial Court is suspended. Resultantly, the appellant is enlarged on the bail subject to the furnishing of solvent surety for a sum of Rs.50,000/- and P.R. bond in the like amount to the satisfaction of the Nazir of this Court.

9. The instant appeal is admitted to regular hearing and office is directed to prepare the paper book within 30 days, and thereafter the instant appeal may be fixed for regular hearing. The instant C.M.A. No.9626/2014 stands disposed of. RR/M-200/Sindh Sentence suspended.