2012 P Cr (PLP)

MUHAMMAD TASNIM, J.

This is an application under section 426(1-A)(c) of the Code of Criminal Procedure (Amendment) Act, 2011, filed by appellant praying for enlargement on bail of appellant during the pendency of the present appeal. It is stated in the application that appellant faced trial before learned Ist Additional Sessions Judge, Karachi East in Crime No.67 of 2003, under section 302/34,P.P.C., Police Station Korangi Karachi-East and was convicted and sentenced to suffer imprisonment for life and to pay fine of Rs.50,000 under section 302, P.P.C. In case of default of payment of fine the accused/appellant had to undergo rigorous imprisonment for six months more. The accused/appellant was also directed to pay compensation of Rs.1,00,000 to the heirs of the deceased Muhammad Razzaq. In case of default in payment of compensation, the accused/appellant had to undergo rigorous imprisonment for six months more. The accused/ appellant was allowed to avail benefit of section 382-B, Cr.P.C. The accused/appellant was present in custody and he was remanded to judicial custody with the conviction writ to serve out the sentence awarded to him. Learned counsel for the appellant has submitted that under the provision of section. 426(1-A)(c) of the Code of Criminal Procedure (Amendment) Act, 2011, the provision has been made for the convicts, who has been sentenced to 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 appellate Court is of the opinion that appellant is not hardened desperate or dangerous criminal or is accused of an act of terrorism punishable with death or imprisonment for life. He further submitted that present appellant was convicted and he has served 32 months after his conviction and apart from the said period of 32 months, he remained in custody ever since 15-2-2003 till today. Learned counsel further submitted that appeal of appellant was admitted per order dated 3-9-2008, but till date not a single adjournment has been taken from the side of appellant. On all the occasions matter was adjourned either for want of time or by the Court itself. In the circumstances, learned counsel submitted that delay in disposal of the appeal is not attributable to the present appellant. He 1 further submitted that case of the appellant is fully covered under the provisions of law mentioned hereinabove and he is entitled to be released ors bail during the pendency of this appeal. It has been stated by the learned counsel for the appellant that the present appellant was not previously convicted offender for an offence punishable with death or imprisonment for life or he is hardened, desperate or dangerous criminal or is accused of an act of terrorism punishable with death or imprisonment for life. Hence, he be released on bail. On the other hand, learned APG has submitted that he has no objection to the grant of this application in view of statutory provision as contained in amended section 426, Cr.P.C. I have heard the learned counsel for the parties and perused the record. To appreciate the contention of the learned counsel for the appellant it will be advantageous to quote the provisions of section 426(1-A) of Code of Criminal Procedure (Amendment) Act, 2011, dated 21-4-2011 which is reproduced hereunder:-. "(lA) 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 appellant or any other person acting on his behalf, order a convicted person to be released on bail'who has been sentenced - ??????????? (a)

(b)

(c) to 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." From the perusal of record it appears that conviction order was passed on 12-8-2008, Present appeal was admitted to regular hearing on 3-9-2008 whereafter case was taken up in Court on 3-7-2009 on which date learned counsel for appellant so also APG were in attendance but the matter could not proceed. On the future dates i.e. 1-10-2009, 29-10-2009, 25-11-2009, 23-12-2009, 3-2-2010, 3-3-2010, 31-3-2010, 28-4-2010, 26.-5-2010, 21-6-2010, 3-8-2010, 31-8-2010, 2-11-2010, 22-3-2011 and 18-4-2011 but on all the dates matter was discharged by Court for want of time. Thereafter, this case was fixed in Court for disposal of some miscellaneous application on 7-12-2010 and said application was disposed of on that day. Thereafter matter has been coming up in Court on different dates but on all the dates either the matter was adjourned for want of time or board was discharged. In this way delay, in disposal of present appeal is not attributable to the present appellant. Since he is not previously convict offender for an offence punishable with death or imprisonment for life or a hardened, desperate or dangerous criminal or is accused of an act of terrorism punishable with death or imprisonment for life his case squarely falls within the provisions of amended section 426(1A), Cr.P.C. and the present appellant appears to be entitled for the relief as provided under the relevant law. In the circumstances, the impugned order dated 12-8-2008 passed in Sessions Case No.155 of 2003 in Crime No.67 of 2003 registered under section 302/34, P.P.C. at Police Station Korangi, Karachi-East, is hereby suspended and appellant/accused Tariq Shah son of Anwar Hussain Shah is ordered to be released on bail on his furnishing one solvent surety in the sum of Rs.500,000.00 (Rupees five hundred thousand) with P.R. bond in the like amount to the satisfaction of Nazir of this Court. Since this appeal is an old matter pending since 2008, learned APG says that it may be heard at an early date. On the other hand, learned counsel for the appellant says that he has no objection to the early hearing of this appeal but he submits that he is proceeding abroad 1 in cohnection with medical treatment of his wife and he will not be here in the next month. In the circumstances, office is directed to fix this appeal immediately after Summer Vacations of 2011 at Serial No.1 in regular hearing cases according to roster. H.B.T./T-5/K?????????????????????????????????????????????????????????????????????????????????????? Order accordingly.