P L D 1980 Supreme Court 295 (PLP)

FAKHRUDDm G. EBRAatM,aJ.-Resprondents 1 to 5 were, on 13-5-1978, convicted by Mr. Muhammad Akram, Magistrate with section 30 powers; Kasur under sections 148, 325 and 326 read with section 149 of the Pakistan Penal Code. For the offence under section 326, they were sentenced to rigorous imprisonment for it period of 7 years ; for the offence under section 325 they were ordered to undergo R. I. for a period of 5 years, and for the offence under section 148 they were directed to receive R. I. for a period of 2 years. All the sentences were directed to run consecutively.

2. The said respondents challenged their convictions in an appeal before the High Court and during its pendency each of them sought. bail under clause (b) of subsection (1-A) of section 426 of Code of Criminal Procedure. In support of bail application, it was urged that more than a year had elapsed since their conviction but their appeal had not been disposed of by the High Court and they were entitled t0 bail as a matter of right under the aforesaid clause (b) of subsection (I-A) of section 426 of the Code of Criminal Procedure which reads as follows :

"(1-A) An appellate Court shall, unless for reasons to be recorded in writing it otherwise directs, order a convicted person to be released on bail who has been sentenced (b) to imprisonment for a period exceeding tbiree years but not exceeding seven years and whose appeal has not berm decided within a period of one year of his conviction."

3. The grant of bail was opposed both by the complainant, the appellant herein, and the respondent State on the ground that the various sentences of imprisonment imposed upon the respondents 1 to 5 were to run consecutively and therefore its aggregated , must be treated as a single sentence and since the aggregate of the sentences exceeded 7 years, said clause (b) of subsection (1-A~ of section 426 of the - Code was not attracted. In support of this submission, reliance was placed on subsection (3) of section 35 of the Code of Criminal Procedure which reads as follows : "(3) For the purpose of appeal, the aggregate of consecutive sentences passed under this section in case of conviction for several offences at one trial shall be deemed to be a single sentence."

4. The learned Single Judge took the view that the aforesaid subsection (3) created a legal fiction inasmuch as it states that "for the purposes of appeal" the various sentences awarded to a convict at one trial should be treated as a single sentence, anus it, would not be appropriate that this legal fiction may be so extended as to deprive a citizen of the benefit of a statutory provision contained in subsection (1-A) of section 426 of the Code. Accordingly, the respondents were enlarged on bail on the ground that none of the sentences of imprisonment awarded to the respondents 1 to 5 exceeded 7 years, while their appeal had remainod undecided for a period in excess of one year of their conviction.

5. Leave was granted by this Court to consider the question whether the provisions of section 426(1-A), C.r. P. C. are governed by the provisions of section 35(3), Cr. P. C.

6. The complainant-appellant is present in person and the State is represented by Mr. Mujib-ur-Rehman,, Advocate, and the respondents I to 5 are represented by Sardar Ishaq Khan., Advocate.

7. The learned counsel for the State raised two contentions in support of this appeal. Firstly, that the learned Single Judge had erred in holding that the respondents 1 to 5 were; entitled tp bail as a matter of right has much as under subsection (1-A) of section 426 of the Code, it is open to the Court, for reasons to be recorders, not to grant bail. In other words it was argued that the Court has also to consider t e circumstances which may not justify the grant of bail sand after recording reasons, refuse to grant bail. Secondly, it was contended that subsection (3) of section 35 of the Code was in terms attracted arid in the alternative, there was no reason why the principle embodied therein was not relevant for the purpose of grant of bail under section 426(1-A). The first contention notwithstanding its prima facie merit need not detain us for more then one reason. First of all Leave was not granted by this Court to consider this question. Secondly it does not appear to be the case of the State before the High Court that on merits bail was not justified. And lastly it may reasonably be assumed that the learned Judge was of the view that -there were not sufficient reasons to deny bail for that assumption would be implicate in the grant of bail to the respondents 1 to 5.

8. Coming to the second contention relating to subsection (3) of section 35 of the Code the question that arises is whether the learned Judge was right in giving restricted effect to its plain words. 'The opening words of subsection are "for the purpose of appeal" and the meaning given by the learned Judge is that these words are relevant only for determining the forum of appeal in a case where consecutive sentences are passed. Plain words must be given their ordinary natural meaning and in the absence of compelling reasons, must be given its full effect. Section 35 of the Code appears in its Chapter III which has as its heading Powers of Courts. Section 426 appears in Chapter XXXI of the Code under the heading of Appeals. The words "for the purpose of appeal" would mean for such purpose as may be relevant to any of the provisions relating to appeal contained in Chapter XXXI and not limited to the purpose of determining forum of appeal. In our view, therefore, the question raised in the Leave Order made by this Court has to be answered in the affirmative.

9. In the alternative, as was argued by the learned counsel for the State that a principle embodied in one section of a statute may reasonably be resorted to in construing another provision of the same statute. In Magsood v. Ali Muhammad and another (1971 S C M R 657), this Court observed that "it is now well settled that where a statute itself lays lays down certain principles for doing some acts they may be taken as a guideline for doing some thing of the some nature which is in the discretion of the Court". In the present case as will be seen hereinafter, there are compelling reasons to extend the principle embodied in subsection (3) of section 35 to the provisions contained in subsection (1-A) of section 426 of the Code. This provision of law came into existence vide Law Reforms Ordinance, 1972 for the reason that there where a large number of criminal appeals which in the normal course would not have come up for bearing before the convict had suffered a considerable part of his sentence and in some cases the appeal would still be pending while the convict had served out his sentence. The purport of the subclause in subsection (I-A)-of section 426 is to enable a convict to apply for bail after a given passage of time since his conviction in relation to the sentence of imprisonment awarded to him. The law contemplates that the e convict must have undergone at least 1/7th of his sentence before he could seek a bail under subsection (I-A) of section

426. It is, therefore, proper that the convict's aggregate sentence should be taken into account in determining the clause of the subsection (I-A) which would entitle him to appeal for bail. Further more the amended provision set at rest the controversy as appearing in the various decisions of Courts as to the extent of delay in the disposal of criminal appeals which would justify the grant of bail.

10. We are, therefore, of the view that the High Court was in error in granting bail to respondents I to 5 under clause (b) of subsection (1-A) of section 426 of the Code for what had to be taken into account was the aggregate sentence, which exceeded 7 years.

11. Faced with this situation, Sardar Ishaq Khan, learned counsel for respondents I and 5 invited our attention that those respondents have now become entitled to bail under clause (e) of subsection (I :A) of section 426 as a period of more than 2 years has elapsed since their conviction and their appeal is yet to be disposed of and therefore the bail granted by the High Court ought not to be cancelled. In the circumstances of the case where learned Single Judge did not deem it fit to deny to the respondents 1 to 5 bail under subsection (1-A) of section 426, no purpose will be served by cancelling the respondent's bail for their case is now covered by clause ( c) of the subsection. The respondents 1 to 5 will, therefore, continue x remain on bail.

12. The appeal is, therefore, disposed of in terms aforesaid with no order as to cost. s. A. H.? Appeal disposed of accordingly.