1986 P Cr (PLP)

(c) Criminal Procedure Code (V of 1898) ‑‑‑Ss. 426 & 497‑‑Penal Code (XLV of 1860), S. 302‑‑Suspension of sentence‑‑Appellate Court, held, competent to suspend sentence and enlarge accused on bail pending hearing of his appeal if it appeared to it that there were strong grounds to show that his conviction was not liable to be sustained. Bahar v. State 1969 S C M R 81 rel. (d) Criminal Procedure Code (V of 1898)‑‑- ‑‑‑Ss. 426 & 497‑‑Penal Code (XLV of 1860), S. 302‑‑Suspension of sentence‑‑Material to be examined by appellate Court‑‑Appellate Court would riot undertake: reappraisal of entire evidence but would confine its consideration to those infirmities in judgment of trial Court with reference to grounds urged in memo. of appeal which would show that conviction and sentence was not sustainable in law‑‑On reaching conclusion that conviction was riot sustainable appellate Court can suspend sentence and admit accused to bail‑‑Appellate Court can also take into consideration, while suspending sentence and enlarging convict on bail, that sentence awarded was very short and time likely to be taken in disposal of appeal would be substantial. (f) Criminal Procedure Code (V of 1898) ‑‑‑Ss. 426 & 497‑‑Penal Code (XLV of 1860), S. 302‑‑Suspension of sentence‑‑Contradiction in statement of complainant and prosecution witnesses pointed out by counsel for convict already considered by trial Court and reason given by Court below for not considering same and on a tentative examination, those were found neither perverse nor contrary to evidence on record‑‑No exceptional circumstances existing in case to justify reappraisal of evidence‑‑Bail application rejected. Baloch Ali Gohar Khan for Appellant. Zawar Hussain Jafferi, Asstt.A.‑G. for the State. Appellant Muhammad Murad son of Sadhayo has been convicted under section 302, P.P.C. by the First Additional Sessions Judge, Shikarpur, and is sentenced to life imprisonment besides fine of Rs.3,000 and in default of payment of fine to suffer further R.I. for one year. The appellant is further directed to pay compensation to the heirs of deceased amounting to Rs.3,000 or to suffer R.I. for 3 months in default. His appeal against conviction and above sentences have been admitted by this Court for regular hearing and he has now applied for suspension of his sentence and enlargement on bail pending disposal of appeal. The learned counsel for the appellant contends that the appellant was all along on bail during trial and, therefore, he may also be granted bail during pendency of the appeal. The learned counsel also contended that there are material contradictions in the evidence of prosecution witnesses and, therefore, conviction and sentence of appellant is likely to be set aside in appeal. The bail application is opposed by the learned Assistant Advocate‑General. The principles for grant and refusal of bail to a person convicted for a non‑bailable offence pending his, appeal is not in any manner different from those applicable under section 497, Cr.P.C. Nor the power of appellate Court under section 426, Cr.P.C. to suspend the sentence of the convict appellant is in any way wider than those enjoyed A by the Court under section 497, Cr.P.C. Therefore, while the appellate Court is enlarging an accused on bail pending his appeal it has come for the conclusion that there are no reasonable grounds for believing that the accused /appellant has committed a non‑bailable offence. It need not be stated here that the initial presumption of innocence in favour B of an accused is substantially dislodged upon his conviction by a competent Court of law. Therefore, a person convicted of a non‑bailable offence by the competent Court of law will not be entitled to be enlarged on bail normally, by the appellate Court except in those circumstances which are mentioned in section 426, Cr.P.C. The appellate Court may, C however, suspend the sentence of convict and enlarge him on bail pending hearing of his appeal, it appears to it that there are strong grounds to show his conviction is not liable to be sustained" see Bahar v . State 1969 S C M R

81. The question which immediately, therefore, arises in such a case is that what is the limit if examination of material by the appellate Court at that stage in arriving at the above conclusion. Should the appellate Court confine its examination to the Judgment of trial Court and memo. of appeal only or should it go into the entire evidence of the case to reach the above conclusion. Since the above conclusion to be reached by the appellate Court for suspending the sentence of the convict appellant must be short of final determination of appeal, therefore, in my view the Court, normally, will not undertake reappraisal of entire evidence in the case at that stage but will confine its consideration to those infirmities in the judgment of trial Court with reference to the grounds urged in the memo. of appeal which would show that the conviction and sentence is not sustainable in law. The appellate Court upon reading of the judgment of the trial Court and the memo. of appeal can tentatively reach the conclusion that the conviction of the appellant is not likely to be sustained upon the reasoning contained in the judgment of the trial Court which are discoverable without deeper and close examination of the evidence then the appellate Court may suspend the sentence of the convict pending disposal of his appeal and admit him to bail. In addition to the above circumstances, the appellate Court may also take into consideration while suspending the sentence and enlarging the appellant on bail that the sentence awarded to appellant is very short while the time likely to be taken in disposal of the appeal will be substantial. I will now examine the present case in the light of the above‑discussed legal position. The learned counsel has urged two grounds for enlargement of appellant on bail and suspension of his sentence. Firstly it is urged that the appellant was all along on bail during trial, therefore, he is also entitled to bail during pendency of his appeal. This ground is hardly relevant for admitting the appellant to bail in the present case. The other ground urged by the learned counsel is that there are contradictions in the statement of complainant and P.Ws. The contradiction pointed out by the learned counsel has been considered by the trial Court in its judgment and the reason given by the Court below for not considering the same, on a tentative examination can neither be said to be perverse nor contrary to evidence on record. The learned counsel then wanted to rely on the evidence in the case to demonstrate that the judgment G of the trial Court is not sustainable in law. I have already pointed out that while considering the application under section 426, Cr.P.C. suspension of sentence of the appellant pending hearing of appeal, the appellate Court will not normally undertake re‑appraisal of entire evidence and I do not find any exceptional circumstances in the present case II which would justify this course. I accordingly reject the application for grant of bail to the appellant. However, the appeal may be fixed for regular hearing as soon as paper book in the case is ready. M. Y. H. Bail refused.