2017 PLP 132 (YLRN)

SHAHNAWAZ TARIQ, J.

Through captioned application under Section 426 Cr.P.C, appellant Nizamuddin son of Noor Muhammad has impugned order dated 25.05.2016, passed by learned Sessions Judge Malir Karachi in Sessions Case No.401/2014, whereby appellant was convicted and sentenced under Sections 3(2)(a)(b), 13/14 Foreigners Act, 1946 to suffer R.I. for three years and to pay fine of Rs.25,000/-. In case of default of payment of fine, he shall further suffer S.I. for one month.

2. Learned counsel for appellant, at the very outset, contended that appellant was on bail during the trial but he never misused the concession of bail; that appellant is Pakistani National and also possess Birth Certificate, CNIC, Passport and Nikahnama but learned trial Court did not properly consider the available material and on merits he has a good case, hence he may be enlarged on bail till final disposal of the main appeal.

3. Learned Standing Counsel extended no objection and submits that appellant is a foreign national, hence sufficient surety amount may be fixed.

4. Heard learned counsel for the parties and perused the record, which emanate that appellant was challaned to face his trial under Foreigners Act, 1946 and on the conclusion of the trial, he was convicted and sentenced R.I for three years and to pay fine Rs.25,

000. Indeed, during the trial, appellant was enlarged on bail by learned trial Court but neither he jumped from the proceedings nor frustrated the trial by any means, which reflects that there is no apprehension of absconding the appellant and such demeanor also be considered by the appellate court while considering the plea of bail. Per learned counsel for the appellant that he is Pakistani National by birth and has also produced his Birth Certificate, CNIC, Passport and Nikahnama duly issued by the concerned departments, before the trial Court, requires serious consideration and in such nature cases, appellate Court should not be influenced mere lodgment of cases under Foreigners Act, 1946. It is significant to mention that powers conferred on an appellate Court under section 426, Cr.P.C. are not wider than the powers to release an accused on bail under sections 497 and 498 Cr.P.C., however, it is incumbent upon the Court to have a tentative assessment of the material available on record, and if Court comes to conclusion that there is no probability of maintaining the sentence awarded by the Court below or appellant has an arguable case on merits, application for suspension of sentence should be considered compassionately. Moreover, due to pendency of the heavy backlog of the cases, instant appeal could not be fixed for regular hearing, hence there is no possibility of early hearing of the instant appeal.

5. Considering the circumstances referred supra, instant application under section 426, Cr.P.C. stands allowed as prayed and operation of the judgment dated 25.05.2016 is hereby suspended and appellant is enlarged on bail on furnishing solvent surety in the sum of Rs.300,000/- (Rupees Three Lacs only) and P.R. bond in the like amount to the satisfaction of Nazir of this Court. Office is directed to call R&Ps from the learned trial Court and prepare paper books on priority and fix instant appeal for regular hearing after notice to all concerned. To come up on 29.11.2016. WA/N-53/Sindh Application allowed.