2022 PLP 135 (YLRN)

ABDUL MAALIK GADDI, J.

1. Deferred.

2. Despite of service, none present for the complainant. It appears from the diary sheet dated 26.09.2019, when complainant was appeared and informed to this Court that his elder advised him to forgive the appellant from this case. Today, this appeal is pending for adjudication, but as observed above, none present on behalf of complainant. Learned DPG submits that presence of the complainant is necessary for adjudication of main appeal. It is stated by learned Counsel for the appellant that appellant is behind the bars since last one year, but this appeal could not be proceeded. He further submits that during trial, the appellant was also on bail and he did not misuse the bail, therefore, he prayed that the appellant may be granted bail after suspension of the sentences awarded by the trial Court. In the above facts and circumstances, the listed application has been heard. Through listed application being M.A. No.9110 of 2018, filed under section 426, Cr.P.C., the appellant seeks suspension of sentences awarded by the Court of learned Additional District and Sessions Judge-IX, Karachi (West), in Sessions Case No.194 of 2016 arising out of Crime No.473 of 2015 registered at Police Station Ittehad Town, Karachi, under section 302, P.P.C., whereby the learned trial Court vide judgment dated 08.10.2018, convicted the appellant under section 302(b), P.P.C. and sentenced him for life imprisonment with fine of Rs.200,000/-, to be paid to the legal heirs of the deceased, and in case of failure, it was further ordered by the trial Court that accused shall undergo S.I. for six (6) months more. However, appellant was also extended benefit of section 382-B, Cr.P.C. It has been contended by learned Counsel for appellant that instant appeal has been admitted to regular hearing vide order dated 26.10.2018, since then, this appeal has yet not been heard; that during trial, the appellant was also remained on bail and after announcement of the impugned judgment, he was taken into custody and since then, he is in jail; that on merits, there are number of contradictions in between the prosecution witnesses, which has not been considered by the trial Court and it is a fit case for acquittal; that this appeal is pending since 2018, since then, it has not been decided due to burden of cases lying in this Court, therefore, the hearing of appeal may take some time and evidence of prosecution witnesses and observations of trial Court are still to be re-appreciated and re-evaluated, therefore, the sentence may be suspended. Mr. Ali Haider Saleem, learned Deputy Prosecutor General, Sindh has submitted that appellant is in jail since 08.10.2018. Heard and perused the record. It appears from the record that this appeal has already been admitted to regular hearing on 26.10.2018 and hearing of this appeal may take some time and evidence of prosecution witnesses and observations of trial Court are still to be re-appreciated and re-evaluated. However, the apparent defects in the impugned judgment cannot be ignored as pointed by learned Counsel for appellant, which goes to the root of the case. Besides this, this Court is cognizant of the fact that while hearing an application under section 426, Cr.P.C., seeking release of the appellant during pendency of the appeal by suspending the sentence, deeper appraisal of the evidence is to be avoided. It will not be out of place to observe that Appellate Court's discretion to grant bail under section 426, Cr.P.C. is not fettered or restricted by reference either to the conviction or to the sentence passed against the appellant by trial Court, but like all discretions vested in the Courts, the discretion has to be exercised judicially. Reference in this regard can be made to the case of Altaf Hussain Shah v. The State (1986 PCr.LJ 2202) and to the case of Abdul Ghaffar v. Anwar-ul-Hassan (1978 SCMR 149). Similarly in the case of Abdullah Khan v. Karam Dad Khan and another (1986 SCMR 1064), the Hon'ble Supreme Court has held that section 426, Cr.P.C. does not impose any limitation on the powers of the High Court to grant bail to an accused convicted even for the murder. In the case of Faqir Muhammad v. Akbar (1979 SCMR 270), the Hon'ble Supreme Court refused to interfere with the order of the High Court suspending sentence of a convict sentenced to imprisonment for life on the ground that plea of self-defence needed examination. Further reference in this regard can also be made to the case of Haji Mir Aftab v. The State (1979 SCMR 320), Maqsood v. Ali Muhammad and another (1971 SCMR 657), Hazrat Ullah v. The State (1979 PCr.LJ 1104) and Maqsood Ahmed v. State (2005 YLR 1049). Keeping in view the ratio of the judgments of the Hon'ble Supreme Court as referred hereinabove, and the defects as noted in the impugned judgment, I am persuaded to suspend the sentences awarded by the learned trial Court to the appellant during pendency of the appeal and enlarge him on bail subject to his furnishing solvent surety in the sum of Rs.250,000/- [Rupees Two Lac Fifty Thousand only] and P.R. bond in the like amount to the satisfaction of the Nazir of this Court. It is clarified that the observations made hereinabove are tentative in nature, whereas, the appeal shall be decided on its own merits and on the basis of evidence available on record. Adjourned to a date, to be fixed by the office. SA/S-2/Sindh Sentence suspended.