2013 PLP 1175 (YLR)

Criminal Miscellaneous No.1-12 SHAHID HAMEED DAR, J.

Through this petition Abdul Manan (petitioner)' has sought suspension of his sentence, as recorded by the learned trial Court through judgment dated 26-1-2012 and admission to bail during the pendency of his appeal. He was held guilty under sections 320, 337-G and 427, P.P.C. and sentenced in following terms:-- UNDER SECTION 320, P.P.C. Ten years R.I along with an amount of Diyat Rs.7,54,

430. UNDER SECTION 337-G, P.P.C. One year' S.I along with Rs.10,000 as Daman. UNDER SECTION 427, P.P.C. Six months' S.I along with fine of Rs.5000, in default thereof to undergo one month' S.I.

2. Having heard learned counsel for the parties and gone through the relevant record, it is observed that the petitioner had been awarded the aforesaid conviction/ sentence in a private complaint case, which was filed by the complainant under sections 302, 324, 427, 109, 34, P.P.C. after about 15 months of the occurrence. The F.I.R. had been registered under sections 322, 337-G, 427, P.P.C. qua the occurrence in question and report under section 173 Cr.P.C. had been submitted before the learned trial Court for offences under sections 320, 337-G, 427, P.P.C. which was adjourned sine die by the learned trial Court on 9-5-2010. The petitioner admittedly had not caused any injury to Arshad who lost his life in the fatal accident. Originally, the F.I.R. was lodged by Muhammad Ali Ashraf complainant with the contention that Muhammad Arshad (deceased) drove an automobile at the time of occurrence which was overtaken by another car driven by the petitioner, in a reckless manner due to which, vehicle of Muhammad Arshad collided against a tree, resulting into sudden death of Muhammad Arshad and severe injuries to his co-riders. In his private complaint, however, the complainant changed his stance with the allegation that petitioner rammed his car into the vehicle of Muhammad Arshad from behind, in consequence whereof, it crashed into a tree due to which Muhammad Arshad died instantaneously and others were badly wounded. The judgment passed by the learned trial Court showed that the amended story advanced by the complainant had not been believed and it was categorically observed by the learned trial Court that the incident had taken place " due to rash and negligent driving of the cars by the accused Abdul Manan as well as Arshad Mehmood and due to fault of accused Abdul Manan accident took place and it is not an intentional murder." It has been further observed in the impugned judgment that the accused was "proved to be guilty of offence of "Qatl-i-Khata" through rash and negligent driving punishable under sections 320/337-G/427, P.P.C......" All the offences under which the petitioner has been convicted are bailable.

3. The question arises whether a person convicted of a bailable offence and who has filed an appeal against the conviction and sentence is entitled to bhail as a matter of right. A reference may be had to relevant provisions of the statute as contained in subsection (2-A) of section 426, Cr.P.C. which reads as under:-- "When any person other than a person accused of a non-bailable offence is sentenced to imprisonment by a Court, and an appeal lies from that sentence, the Court may if the convicted person satisfies the Court that he intends to present an appeal, order that he be released on bail for a period sufficient in the opinion of the Court to be enable him to present the appeal and obtain the orders of the Appellate Court under subsection (1) and the sentence of imprisonment shall, so long as he is so released on bail, be deemed to be suspended."

4. The above said provision of law was inserted by Law Reforms Ordinance, 1972, item 148(11). The language of subsection (2-A) of 426 Cr.P.C. shows that the discretion of original court of jurisdiction convicting a person for a bailable offence is subject to its satisfaction that the convict has intention to file an appeal. The trial Court is bound by law to admit the convict to bail once it assures itself of the intention of the convict to file an appeal against the judgment/order of conviction. Grant of bail to a convict immediately on his conviction, has been made mandatory by the law if he assuredly contends to impugn the order of conviction and such assurance of the convict finds weight with the court. It may be observed that grant of bail to a convict in bailable offences shall be an indefeasible and inalienable right like an under trial person is entitled to, under section 496, Cr.P.C. Mere heinousness of a bailable offence may not deter the court to release an accused/convict on bail who has filed an appeal against his conviction and sentence. A matter of right cannot be allowed to be eclipsed by the quantum of punishment, recorded by the court of original jurisdiction in a bailable offence.

5. For these reasons, it is held that the petitioner is entitled to grant of bail by way of suspension of sentence on the touchstone of ratio decidendi laid down in case titled Abdul Habib Khan and another v. The Emperor (AIR 1928 All 211), wherein it has been held:-- "... However serious an offence may be, if it is bailable and there is no reason, such as the likelihood of the applicant absconding if released on bail, the seriousness of the offence would not alone justify a Court in refusing bail to which a convicted person is entitled under the law."

6. Resultantly, I allow the instant petition, suspend the sentence of the petitioner and he shall be released on bad subject to furnishing bail bonds in the sum of Rs.1,00,000 with two sureties each in the like amount to the satisfaction of learned trial Court. The petitioner is directed to appear before this court on each and every date of hearing of main appeal. MWA/A-65/L Petition allowed.