P L D 2002 Supreme Court 845 (PLP)

JAVED IQBAL, J.‑‑‑The above captioned Petitions (Nos.86‑L to 89‑L of 2002) for leave to appeal are directed against judgment dated 14‑1‑2002 passed by learned Single Judge in Chamber of the Lahore High Court, Lahore, whereby Criminal Miscellaneous No.1 of 2001 in Criminal Appeals Nos.208b to 2083 of 2001 preferred on behalf of petitioner under section 426, Cr.P.C. for suspension of sentence has been rejected. These petitions are being disposed of b this order as similar questions of law and facts are involved.

2. The instant petitions were heard on 20‑5‑2002 and following order was passed: "It is, inter alia, contended by Sardar Muhammad Latif Khan Khosa, learned Advocate Supreme Court on behalf of petitioner that it was mandatory, obligatory and bounden duty of the learned High Court to have examined the case on merits and should have dilated upon the contentions as agitated in‑depth while deciding application under section 426, Cr.P.C. On the other hand it is pointed out by Mr. Nasim Saber Ch. learned Additional Advocate‑General, that the discretion as conferred upon by the High Court has been exercised properly and in accordance with settled norms of justice. Let the matter be examined in view of the dictum as laid down in cases titled Muhammad Ashiq v. State 1996 SCMR 1559, Liaqat v. State 1995 SCMR 1819, Ahmad Subhan v. State 1994 SCMR 1176. Let the evidence and incriminating material and the reasoning given by the Court below for awarding conviction be also examined. Order reserved."???????

3. After having a careful scrutiny of the entire record and the authorities referred to in the above reproduced order we are not persuaded to agree with Sardar Muhammad Latif Khan Khosa learned Advocate Supreme Court for petitioner that it was mandatory, obligatory and bounden duty of the learned High Court to have examined the case on merits and should have dilated upon the contentions as agitated in‑depth while deciding application under section 426, Cr.P.C. for the simple reason that 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. as it would be a premature stage. A conviction cannot be set aside while exercising jurisdiction as conferred under section 426, Cr.P.C. on the grounds with reference to evidence and merits of the case which certainly require a thorough probe and deeper scrutiny of evidence which should be avoided. It is well‑settled by now that "the discretion has to be exercised judiciously by considering the relevant facts without entering or commenting upon the merits of the case. If the contention raised; requires consideration of merits, the Appellate Court would refrain from entertaining such contentions. At this stage, the Court cannot enter into a reappraisal of evidence which should be considered at the time of hearing of the appeal. Where on perusal of the facts in the judgment impugned, the Court comes to the conclusion that the judgment suffers from any legal error, it would be justified to suspend the 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 all attempts should be made neither to reappraise the evidence nor to enter into the merits of the case. Bashir Ahmad v. Zulfiqar PLD 1992 SC 463; Muhammad Ashraf v. The State 1971 SCMR 183; Noor Abdullah and another v. The State 1981 SCMR 859; Jamshed Azam v. The State 1990 SCMR 1393.

4. No doubt the order impugned is brief but in our considered view the learned High Court is not required to give elaborate reasoning to avoid the possibility of prejudice. In this regard we are fortified by the dictum as laid down in the titled Mussaddiq Hussain Shah v. The State 1985 SCMR 1879. The discretion exercised by the learned High Court was not interfered even where the reasoning was not given altogether. Ashiq v. Sajjad Ahmad 1970 SCMR

540. The order impugned is brief but comprehensive which is of the fact that tentative assessment of the relevant record and made. There is no cavil with the proposition that where Court has exercised its discretion judiciously while exercising its

426. Cr.P.C. This Court does not interfere unless the circumstances are altogether of an unexceptional character. By means of impugned order dated 14‑1‑2002 the High‑Court has exercised its discretionary powers under section 426, Cr.P.C. which is not liable to challenge before this Court subject to certain exceptions which are lacking in this case. If any authority is needed case titled Yousaf v. The State 1981 SCMR 958 can be referred. In the light of what has been stated hereinabove we are not inclined to accept these petitions which are rejected with the direction that the appeals pending may be disposed of expeditiously. M.B.A./A‑245/S????????? Petition dismissed.