2013 PLP 394 (YLR)

CH. MUHAMMAD IBRAHIM ZIA, J.

The supra titled criminal appeal is filed under the provisions of section 25 of the AJ&K Islamic Penal Laws (Enforcement) Act, 1974 against the order of the Shariat Court dated 29-9-2011, whereby, the application of the appellants for grant of bail under the provisions of newly inserted subsection (1-A) (c) of section 426 of Cr.P.C. has been rejected.

2. The precise summary of facts necessary for disposal of this case is that the appellants have been implicated for the alleged commission of offences as reported to the Police Station Kotli, under F.I.R. No.345 of 2004. The appellants were arrested on 10-9-2004, and faced the trial in the District Criminal Court Kotli. After completion of required proceedings the trial Court vide judgment dated 30-10-2004 awarded the life imprisonment along with some other punishments to the accused. Feeling aggrieved, the convicts as well as complainant filed appeals in the Shariat Court on 2-12-2004 and 23-11-2004 respectively. The Shariat Court vide judgment dated 24-2-2005, dismissed the appeal filed by the convicts, whereas by accepting the appeal filed by the complainant, the Shariat Court enhanced the punishment awarded to the convicts appellants and consequently the death sentence was awarded by a single member Bench.

3. The propriety of the judgment of the Shariat Court was challenged before this Court through an appeal filed on 24-3-2005. This Court, while accepting the appeal on technical ground that the death sentence was passed by a single member Bench, remanded the case back to the Shariat Court for fresh decision by a bench comprising of at least two Judges vide judgment dated 25-4-2011. The convict-appellants, after remand of the case applied for bail under the amended provisions of section 426, Cr.P.C. on the sole ground that the appeal is pending since last seven years, which has not been disposed of, thus they are entitled for bail under the statutory provisions. The Full Bench of the learned Shariat Court, through the impugned judgment dated 29-9-2011, dismissed the application on the ground that the required period of two years of pendency of appeal has not been completed.

4. Sardar Abdul Hameed Khan, the learned counsel for the appellants, argued the case at some length and after stating facts of the case, mainly focused his arguments on the point that the original appeal was filed in the Shariat Court on 2-12-2004. Although it was decided by the Shariat Court on 24-2-2005, but as the Supreme Court, vide its judgment dated 25-4-2011 has remanded the appeal for fresh decision, therefore, it shall be treated pending since 2-12-2004 and thus the required statutory period of two years of pendency of appeal, has been completed and the learned Shariat Court has fell in error of law while dismissing the application for grant of bail. He placed reliance on legal precedents reported as 1998 SCR 146, PLD 2007 SC (AJK)

119. He further contended that the appellants/ convict accused neither are dangerous nor desperate, therefore, there is no legal obstacle in releasing them on bail.

5. On the other hand, Ch. Muhammad Taj, the learned counsel for the complainant, while controverting the arguments of the learned counsel for the appellants, defended the impugned judgment on the ground that the appeal has been remanded by this Court vide order dated 25-4-2011, thus for the purpose of the amended provisions of law, the pendency of the appeal will be counted from the date when the file received back under the remand order of this Court and not from the date of filing of the previous appeal, which was disposed of by the Shariat Court, therefore, the argument of the learned counsel for the appellants is not acceptable. He further contended that even if the period in disposal of the previous appeal before the Shariat Court is considered that has only consumed 3 month' time, thus they have got no legal ground for submission of bail application under the amended statutory provision of Cr.P.C. He further submitted that it is also not correct that the convict accused are not dangerous and desperate. The prosecution story which stood proved through evidence is the speaking proof of the conduct of the appellants that they are dangerous and desperate criminals.

6. Mr. Muzaffar Ali Zaffar, Additional Advocate-General, adopted the arguments advanced by the learned counsel for the complainant and referred 1983 SCMR 234 in support of his contention and requested for rejection of revision petition.

7. We have dispassionately considered the arguments of the learned counsel for the parties and also perused the record. The statutory provisions under which the appellants claim concession of bail reads as under:-- "(1-A) 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 appellate or any other person acting on his behalf, order a convicted person to be released on bail who has been sentenced to:-- (a) 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) 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) 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." While interpreting this provision, the learned Shariat Court observed as following:-- "

10. The plain reading of sec-tion 426 subsection (4) (1-A)(c) of the Criminal Procedure Code, 1898, makes crystal clear the intention of legislature that an Appellate Court shall, except where it is of the opinion that this 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 and who is convicted to imprisonment for life or imprisonment exceeding seven years and whose appeal could not be decided within a period of two years, ordered to be released on bail. Coming to the instant case, the statutory period of two years have not been completed, therefore, the petitioners are not entitled to any relief." The phraseology of the statutory provision is very much clear. The plain reading of the statutory provision conveys the spirit of law that for the purpose of this provision the period consumed in disposal of appeal shall be considered before the concerned appellate Court and not the other Courts before which the first, second or any other type of appeal remained pending. In section 426, Cr.P.C., the legislature has used the word "appellate Court" with different articles. In subsection (1) before the word "appellate Court" article "the" has been used, whereas in subsection (1-A) article "an" has been used. The use of different articles before the word "appellate Court" conveys different connotations. In subsection (1) the intention of the legislature to make reference as a common noun for a group of all the appellate Courts the article "the" has been used but in subsection (1-A) the use of article "an" before the appellate Court refers to only one Court, thus the argument of the learned counsel for the appellants that the period consumed in disposal of the appeal of convict accused before all the Courts shall be computed for the purpose, is not accepted. Our this view finds support from the principle of law enunciated by the apex Court of Pakistan in Abdul Razzaq's case reported as 1983 SCMR 234, wherein while interpreting the scope of subsection (1-A) of section 426, Cr.P.C., the conclusion drawn by the apex Court speaks as following:

"Subsection (1-A) of section 426, Cr.P.C. prescribes various periods of sentence, which an appellate Court functioning under the Criminal Procedure Code, has to keep in mind. In many cases when the matter is brought to this Court either as direct appeal or as a petition for special leave to appeal, those periods, on account of hierarchy of the appellate and Revisional forums on the criminal sides, would have already passed. The argument, if accepted would imply automatic release on bail in all such cases. This could not be intention underlying the law." The learned Shariat Court has rightly passed the impugned judgment and there is no reason to disagree with the conclusion drawn in the impugned judgment.

8. The appeal against the conviction order dated 13-10-2004 was disposed of by the Shariat Court vide judgment dated 24-2-2005, thus it cannot be said that the appeal has not been decided by the Shariat Court within a period of two years of the conviction of the appellant. Therefore, the statutory provision for grant of bail on the ground of pendency of appeal is not attracted in this case.

9. The case-law referred to by the learned counsel for the appellants relates to the general principle of interpretation of statute, whereas the direct precedent of apex Court of Pakistan referred to hereinabove applies to the case in hand, thus the authorities referred to have no direct nexus with the case in hand, hence the discussion of the same is not necessary. For the above discussed reasons, finding no force in this appeal, the same is hereby dismissed. HBT/105/SC(AJ&K) Appeal dismissed.