2012 PLP 997 (SCMR)

TASSADUQ HUSSAIN JILLANI, J.

This petition is directed against the order dated 23-11-2011 passed by the learned High Court whereby having entertained Criminal Appeal No.264 of 2011 filed by the petitioner against his conviction (in the case registered vide F.I.R. No.6 dated 11-1-2008 under sections 161 and 420, P.P.C. read with section 5(2)47, P.C.A. at Police Station Anti-Corruption, Layyah vide the judgment dated 26-3-2011 of the trial Court), it dismissed Criminal Miscellaneous No.1 of 2011 filed in the said appeal for suspending the sentence shortly on the ground as under:-- "The convict did not surrender before this Court even just after passing of the sentence and remained absconder for more than one month and thereafter on 5-4-2011, he preferred the appeal along with this petition. In such eventuality, I am of the opinion that the petitioner remained absconder after the pronouncement of judgment for more-than one month and did not surrender before any competent authority for such a long time. In a case reported in 2002 PCr.LJ 1006, it was observed that the fugitive from law looses some normal rights. In this way, this petition has no force and the same stands dismissed. However, after the arrest of the petitioner, he may move the petition for suspension of his sentence on merits, if so advised. Copy of this order be sent to the learned trial Court for information."

2. The office did not entertain the petition on the ground that since the petitioner had not surrendered pursuant to the judgment of conviction passed by the learned Trial Court, the petition was not entertainable in view of Rule 8, Order XXIII of the Supreme Court Rules, 1980. Having heard petitioner's learned counsel at some length, we directed Sardar Muhammad Ishaq and Syed Iftikhar Hussain Gillani, learned Senior ASCs to address this Court as amicus curiae. A notice was also issued to learned Advocate-General Punjab and Mr. Jawad Hassan, learned Additional Advocate-General appeared. Mr. Irfan Malik, learned Additional Prosecutor-General has also assisted this Court.

3. Learned counsel for the petitioner submitted that the learned High Court could not have summarily dismissed his petition under section 426, Cr.P.C. for suspension of sentence having entertained the appeal against conviction. According to him section 426(1), Cr.P.C. has two parts; one pertains to a situation when appeal is filed and along with it a petition is moved for suspension of sentence and the convict may not be in confinement whereas the second part is relatable to a circumstance when he has been arrested and is in lockup and files a petition for suspension of sentence and release. The court seized of the appeal, according to him, can suspend the sentence in both the eventualities.

4. Sardar Muhammad Ishaque, learned Senior Advocate Supreme Court submitted that the petitioner is a fugitive to law and his petition had rightly been dismissed by the learned High Court. He submitted that a convict can seek suspension of sentence only if he surrenders before the Court and cannot seek pre-arrest bail as unlike an accused facing trial a case stands proved against a convict and his surrender is a sine qua non for entertaining the petition. In support of the submissions made, he relied on Bakhta v. State (1985 SCMR 97) and Musharaf Khan v. The State (1985 SCM 900). He also relied on Zahid v. The State (PLD 1991 SC 3). He lastly contended that the principle for the grant of bail under sections 497 and 498, Cr.P.C. are distinct from the one under section 426, Cr.P.C. as under the latter provision a case stands proved whereas under the former case he is still under trial.

5. Syed Iftikhar Hussain Gillani, learned Senior Advocate Supreme Court submitted that a close reading of section 426, Cr.P.C. would indicate that it has two parts. In the first part, the Court seized of an appeal can order that the execution of the sentence be suspended and in terms of the second part, if he is in confinement he be released on bail. Both these parts, he further contended, are disjunctive and for entertaining the petition under section 426, Cr.P.C., surrender before the police is not a condition precedent. The accused, he added can surrender before the court seized of the appeal and the court itself may suspend the sentence treating the appearance before it to be a surrender in the eyes of law.

6. Mr. Jawad Hassan, learned Additional Advocate-General and Mr. Irfan Malik, learned Additional Prosecutor-General agreed with Syed Iftikhar Hussain Gillani, learned Senior Advocate Supreme Court with regard to the afore-referred construction of section 426, Cr.P.C.

7. Having heard learned counsel for the petitioner and learned amicus curiae, to dilate upon the issues raised a reference to section 426(1), Cr.P.C. would be in order, which reads as follows:-- "

426. Suspension of sentence pending appeals

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 or on his own bond."

8. The afore-referred provision has two parts. One part is relatable to a situation when a petition for suspension of sentence is filed along with appeal and the convict has not surrendered before the police but appears before the Court. The Court in such a situation may "order that the execution of the sentence or order appealed against be suspended" whereas the second part is relatable to a situation when the convict has already been arrested and the said section stipulates that "and, also, if he is in confinement, that he be released on bail or on his own bond". The argument that the appearance before the Court in a petition under section 426, Cr.P.C. is not surrender or that the principles for the grant of bail under sections 497 and 426, Cr.P.C. are entirely distinct is not tenable because both are analogous provisions and this Court in Shamshad Hussain v. Gulraiz Akhtar (PLD 2007 SC 564) has held that in absence of any guideline, the principles which govern section 497, Cr.P.C. may guide the exercise of discretion under section 426, Cr.P.C. The Court observed as follows:-- "Section 426(1) though has made essential the recording of reasons in case of suspension of sentence but has not prescribed any guideline or the manner in which such a discretion is to be exercised as how and what would be the criteria for the recording of the reasons. Since these provisions, under section 426(1) are analogous to the one contained in section 497, Cr.P.C. as in both the cases the sentence or detention is to be suspended pending hearing of the appeal/trial and the convict or the detenue is to be released on bail with only difference that in the former case the person is a convict one, already found guilty, while in the latter he has been charged only and to face trial and is still to be proved guilty. It would be appropriate, in the absence of any guideline, to follow 'the one provided under section 497, Cr.P.C. on the principle that where a Statute lays down certain principles for doing 'some acts they may be taken as a guideline for doing something of the same nature which is in the discretion of the court as held in the case of Maqsood v. Ali Muhammad 1971 SCMR 657 and which principle, as later on, was reaffirmed by this Court in the case of Peer Mukaram-ul-Haq v. National Accountability Bureau NAB through Chairman and others 2006 SCMR 1225. In section 497, Cr.P.C., the existence and non -existence of the reasonable grounds for believing that the person is guilty of the offence and the scope of further inquiry are the criteria/hallmarks and for arriving at such conclusion the tentative assessment and not the minute or detailed assessment of the evidence has been made permissible, the principle laid down by this Court and reaffirming repeatedly. Similarly, the same guidelines have been laid down by the superior Courts that in case of suspension of sentence, only the tentative assessment of the material available evidence and of the judgments has been made permissible and the detailed appraisal of evidence was held to be avoided as held by this Court in the cases of Allah Ditta Khan (supra) and Farhat Azeem (supra). However, the principles laid down by this Court in the aforesaid judgments qua following the guidelines prescribed under section 497, Cr.P.C. while deciding application under section 426(1), Cr.P.C. but without being controlled by the aforesaid section i.e., 497, Cr.P.C, as held in the case of The State v. Shah Sawar 1969 SCMR 151 and such powers i.e., the suspension of sentences and grant of bail under section 426, Cr.P.C. are not wider than the power to release a person on bail under section 497, Cr.P.C. as held in the case of Bahar Khan v. The State 1969 SCMR 81 but rather narrower."

9. In the instant case, admittedly the petitioner had appeared before the High Court which amounted to surrender and the Court could not have dismissed the petition merely because a petitioner/convict had not surrendered before the police. This is in line with the law laid down by this Court in Bakhta v. State (1985 SCMR 97) to which reference has been made by Sardar Muhammad Ishaque. In the said case, this Court dismissed the petition seeking suspension of sentence because the convict did not surrender before the Court despite two opportunities given. The court held as follows:-- "As the petitioners had not surrendered themselves in pursuance of the order of the High Court, the petition could be heard only if they surrendered themselves before this Court. When this case camp up for hearing on the first occasion, the petitioners were not present and their learned counsel sought adjournment on the ground that he could not inform the petitioners of the date of hearing, for which reason they could not be present before the Court. Accordingly, the case was adjourned for today. The petitioners are however not present before the Court even today and counsel again prays for adjournment. We are not inclined to again adjourn the case. In the circumstances noted above, this petition cannot be heard. It is, therefore, dismissed hereby."

10. In Musharaf Khan v. The State (1985 SCMR 900) the bail had been cancelled by the High Court, the petitioner did not surrender before the police and instead surrendered before this Court and his petition was not only entertained but he was allowed to remain on bail on the bail bonds furnished by him in pursuance of the order of the Sessions Court. In Zahid v. The State (PLD 1991 SC 379), the trial Court had allowed bail to the petitioner which was set aside by the learned High Court. The petitioner moved this Court and the Assistant Registrar did not entertain the petition on the ground that "this petition is hit by the second proviso to Rule 8, Order XXIII of the Supreme Court Rules, 1980. Therefore, it cannot be entertained and the same is hereby returned to the A.O.R." Petitioner's appeal under Order V, Rule 3 of the Supreme Court Rules was allowed by this Court and the office was directed to entertain the petition and for placing it before the Court.

11. In the instant case as well petitioner had surrendered before the High Court. The said Court could have allowed the petition or could have dismissed it on merit, but could not have refused to even consider his prayer. In these circumstances, this petition is converted into appeal and allowed. The impugned order of the High Court is set aside. Consequently, petitioner's Criminal Miscellaneous bearing No.1 of 2011 (In Criminal Appeal No.264 of 2011) shall be deemed to be pending before the learned High Court to be decided afresh within two weeks of petitioner's appearance before it. Petitioner is directed to appear before the learned High Court on 10-5-2010. M.W.A./M-31/SC Order accordingly.