2014 P Cr (PLP)

HASSAN FEROZ, J.

This order will dispose of application under section 426, Cr.P.C. preferred in criminal appeal on behalf of the appellants who being aggrieved and dissatisfied with the judgment dated 18-9-2012 passed by the Additional District and Sessions Judge, Gambat whereby the appellants have been convicted under section 302(b) read with section 149, P.P.C. and sentenced to suffer R.I. for 25 years each and to pay a fine of Rs. 50,000 each to the legal heirs of deceased in case of default in payment of fine/Diyat amount the appellants shall further suffer S.I. for six months'. The appellants were also convicted and sentenced to undergo under section 201, P.P.C. for the period of 3(three) years' R.I. one of accused Aijaz Ali Bughio has been acquitted.

2. The present appeal was firstly preferred before the High Court of Sindh Circuit Bench at Sukkur vide Criminal Appeal No.64 of 2012 whereafter this appeal has been transferred to principal seat.

3. The facts as narrated in the F.I.R. lodged by complainant Gulab are that on 29-7-2006, complainant his brother namely Piyaro alias Hajan, Wazir Kalhoro and cousin Waris Kalhoro were coming towards village Soomar Kalhoro. At about 1030 (night) when they reached near land of Naimat Ali Mangi, suddenly at protective bund, Channa community made hakals to complainant party, they identified accused Alidino, Rasool Bux, Mir Muhammad alias Meero, Irshad and Ghulam Shabir were there. In the light of torch they identified that accused Rasool Bux having Kalashnikov, Mir Muhammad and Irshad having guns, Alidino and Ghulam Shabir having rifles, fired upon complainant party, in firing his brother namely Piyaro alias Sajan died on spot thereafter complainant appeared at P.S. and lodged F.I.R.

4. It has been contended by the learned counsel for the appellant that gross negligence and miscarriage of justice has been done with the appellants and has drawn my attention to the last paragraph of judgment wherein the judgment bears that there is no direct evidence against the appellants and or motive has been shown. Learned counsel has further contended that the torch-light upon which the accused has been allegedly identified the torch has not been recovered nor made case property. He has further contended that the evidence on record has not been properly taken into consideration and that the cross-examination on behalf of the appellants has completely been ignored whereas examination-in-chief has been made basis of conviction. Learned counsel further contended that the allegations of firing by five accused persons is not sustainable as only one injury has been shown to have been received by the deceased as per medical report. He has also contended that the complainant and witnesses have sworn their affidavits that they have forgiven the appellants due to intervention of nekmard and have forgiven the appellants on Holy Quran.

5. The learned APG Mr. Shahzado Saleem has frankly conceded.

6. I have in my respectful consideration 1978 SCMR 149 wherein appellate Court's discretion to grant bail after suspending conviction is not fettered or restricted. In the case reported in PLD 2001 Lah. 348 guidelines provided with regard to the discretion under section 426, Cr.P.C. that it has to be exercised judiciously by considering the relevant facts without commenting on the merits of the case. Appellate Court would refrain from entertaining the contention which requires consideration on merits or reappraisal on merits which should be considered at the time of hearing of appeals.

7. I have also in my consideration 2002 PCr.LJ 1573 wherein deeper appreciation of evidence during the proceeding of application under section 426, Cr.P.C. has not been favoured so also in PLD 2010 SC(AJ&K) 29 a distinction has been drawn between the principle for grant or refusal of bail to a convict, a person who has not been convicted or who is under trial. Presumption of innocence is in favour of person who is under trial and not in favour of convict. The moment the person was convicted by a competent Court of law, he will loose the presumption of innocence and in a case when conviction has been recorded the appellate Court may be more conscious and the Court should not treat it and adopt lightly otherwise it would endanger of encouragement of vandalism.

8. I have in my view that it is a murder case wherein appellants have been named and the presence of the appellants cannot be discarded in view of their lodging of F.I.R. showing presence in Crime No.4 of 2006 and Crime No 6 of 2006 of the same date and Police Station. The point urged that motive is lacking which can only be assessed at the time of hearing of appeal and mere filing of affidavit of complainant and witnesses would not give benefit to application under section 426, Cr.P.C. as the application pertains to suspension of judgment and the judgment can only be suspended when there are cogent and reasonable grounds of innocence of appellants showing gross miscarriage of justice and any infirmity or irregularity in the judgment. The mark difference between suspension under section 426, Cr.P.C. and grant of bail under section 497, Cr.P.C. is according to the statutory intent of the Code of Criminal Procedure as in the matter of bail, innocence of accused is the prime consideration viz; that he is not guilty of offence falling under further inquiry, whereas under section 426, Cr.P.C. it is the judgment that holds ground and underneath of the judgment there exists evidence which can only be given cursory glance and cannot be deeply considered by picking holes in the judgment as the suspension of sentence does not carry reappraisal of judgment and such opinion is to be formed on the reasonable grounds to believe that the accused is not guilty, thus suspension of sentence can only be made on sound principles of justice as envisaged under section 426, Cr.P.C. as strong grounds are required for suspension of sentence which have not come out upon tentative assessment of judgment.

9. I am clear in my mind that it is well-settled law that after handing down of punishment, the innocence of accused turned into guilt and innocence departs away and it is also in my view that deeper appreciation and reappraisal of evidence can only be made during the course of hearing of appeal rather it would be prejudging the appeal and reappraisal of evidence at the stage of hearing of application under section 426, Cr.P.C.

10. In view of the above discussion and reliance upon the dictum of superior Courts I am of the view that provisions of section 426, Cr.P.C. invoking the jurisdiction for suspension of sentence, pending appeal, has not been made out therefore, I am not inclined to suspend the sentence of appellant, at this stage and reject this application. Any observation made in this order will not affect the hearing of pending appeal. The application under section 426, Cr.P.C. stands dismissed. HBT/I-24/K Application rejected.