2016 PLP 1088 (MLD)

NAIMATULLAH PHULPOTO, J.

Appellant Sultan seeks suspension of sentence during pendency of appeal. Appellant Sultan was tried by learned IV-Additional Sessions Judge, Karachi East in S.C. No. 428/2010 registered against appellant at P.S Al-Falah vide crime No. 359/2010 under Section 376(1), P.P.C. After full-fledged trial, by judgment dated 27.05.2015, appellant was convicted under Section 376(1), P.P.C. and sentenced to 10 years R.I. and to pay fine of Rs.50,000/-.

2. Brief facts of the prosecution case as disclosed in the FIR are that on 27.05.2010 at 11.00 hours baby Sania aged about 6 years left her house and returned back weeping. It is alleged that appellant had committed rape with minor baby. FIR was lodged by Mst. Kubra Bibi at P.S. Al-Falah regarding such unfortunate incident. Appellant was arrested and after usual investigation, challan was submitted against accused under section 376(1), P.P.C. On the conclusion of trial, appellant was convicted and he has filed appeal before this Court on 12.06.2015.

3. Learned counsel for the appellant mainly contended that appellant is in custody since 27.05.2010. It is further contended that complainant Mst. Kubra Bibi had filed affidavit before the trial court and recorded no objection for grant of bail to the appellant. Lastly, it is contended that there are material contradictions in the prosecution evidence, therefore execution of sentence may be suspended pending appeal.

4. Mr. Abdullah Rajput learned APG argued that appellant has been implicated by victim baby during trial and evidence of the victim baby is corroborated by the medical evidence. He has further argued that at this stage appreciation of evidence is not permissible under the law. Lastly, he argued that there is no reasonable ground for suspension of sentence and opposed the application.

5. After hearing learned counsel for the parties, I have perused the relevant record. It appears that appellant has been found guilty by the trial court and he has been convicted under section 376(1), P.P.C. and sentenced to 10 years' R.I and to pay fine of Rs.50,000/-. Appellant has filed appeal on 12.06.2015 yet three months have passed. As regards to contention for suspension of sentence during pendency of appeal in this case is concerned, section 426, Cr.P.C. reads as under:-- Section

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 on bail or on his own bond. (1A) An Appellate Court shall except where it is of the 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 year 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: Provided that the provisions of the foregoing paragraphs shall not apply to a previously convicted offender for an offence punishable with death or imprisonment for life or to a person who, in the opinion of the Appellate Court, is a hardened desperate or dangerous criminal or is accused of an act of terrorism punishable with death or imprisonment for life. (2) The power conferred by this section on an Appellate Court may be exercised also by the High Court in the case of any appeal by a convicted person to a Court subordinate thereto. (2-A) (2-B) (3)

6. From the above reproduction, the intention of scheme of legislature is quite clear about the suspension of sentence during pendency of appeal. Offence under section 376(1), P.P.C. is punishable with death or imprisonment for life for either description for a term which shall not be less than 10 years or more than 25 years and shall also be liable to fine. In the present case appellant has been convicted by trial court under section 376(1), P.P.C. for 10 years' RI and to pay fine of Rs.50,000/-. Therefore provision of Section 426(1)(c) Cr.P.C. shall be applicable to the case of appellant. This provision of law is mandatory in nature which provides that the convicted person to be released on bail who has been sentenced 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. In the present case appellant was convicted by the trial court vide judgment dated 27.05.2015 and appeal has been filed on 12.06.2015, yet three months have passed. It is pre-mature stage to apply for suspension of sentence of appellant. Learned counsel for the appellant has also referred to the affidavit of complainant filed before the trial court in which he recorded no objection for grant of bail to the accused. Such affidavit cannot be considered by this Court while deciding aforesaid application for suspension of sentence. Other contention of learned counsel for the appellant that there are material contradictions in the prosecution evidence. It is well entrenched legal position that appraisal of evidence in depth is neither warranted nor desirable while dilating upon and deciding such application. A Court should confine itself to the judgment assailed before it. A thorough scrutiny of evidence and its evaluation should be made while adjudicating upon the appeal as it would be opportune moment for doing so and not while deciding the application moved under section 426, Cr.P.C. Reliance is placed upon the case of Adil Bashir v. The State (2003 SCMR 407). Moreover, no legal flaws in the judgment have been pointed out.

7. The application for suspension of sentence being devoid of merits is dismissed. HBT/S-61/Sindh Application dismissed.