2001 PLP 1335 (MLD)

4. Learned counsel for the petitioner‑convict seeks suspension of sentence of the petitioner on the statutory ground by submitting that two years have elapsed and the appeal had not been decided; that while deciding application under section 426(1‑A), Cr.P.C. merits of the‑case cannot be discussed and that the petitioner‑convict was declared innocent during investigation. In support of his submissions, learned counsel relied on Liaqat and another v. The State (1995 SCMR 1819).

5. Learned counsel for the State, on the other hand, had opposed the prayer for bail and submitted that notwithstanding the lapse of statutory period the prayer for suspension of sentence can be refused if it is found that the convict is a hardened, desperate or a dangerous criminal or involved in terrorism. According to him conduct of the petitioner‑convict Mustafa was desperate inasmuch as he snatched the licensed rifle of Muhammad Hanif deceased, felled him down and facilitated his murder by keeping a guard and preventing any prosecution witness to come in aid of Hanif.

6. We have heard learned counsel for the petitioner as also for the State.

7. There is no cavil to the proposition that if the appeal of a convict who is sentenced to life imprisonment or imprisonment exceeding seven years had not been decided within a period of two years of his conviction, the Appellate Court may release him on bail. However, section 426(1‑A), Cr.P.C. qualifies that the Court may refuse to release him on bail for "reasons to be recorded in writing". The expression "reasons to be recorded in writing" has been subject of comment by the superior Courts. In Liaqat Ali v. The State (1995 SCMR 1819), at page 1828, it was observed as under: "Respectfully following the above enunciation of law, we are of the view that although the considerations relevant under 3rd and 4th provisos to section 497, Cr.P.C. cannot be extended in their terms to section 426, Cr.P.C. as the 3rd and 4th provisos to section 497, Cr.P.C. are applicable at the stage of the case when the initial presumption as to the innocence of an accused has not been dislodged, the considerations relevant for the refusal of bail under the 3rd and 4th provisos of section 497, Cr.P.C. can be taken into account by the Appellate Court while declining suspension of sentence and admission to bail to the appellant under section 426 (1‑A), Cr.P.C." Proviso four to section 497, Cr.P.C. reads as under: "Provided further that the provisions of the third proviso to this subsection shall not apply to a previously convicted offender or to a person who, in the opinion of the Court, is a hardened, desperate or dangerous criminal. " The expression "desperate" and "dangerous" came up for consideration before the Hon'ble Supreme Court in Moundar and others v. The State (PLD 1990 Supreme Court 934), at page 940, it was observed as under: "According to the same dictionary the word 'harden' has been defined to mean, inter alia (1) to render to make hard; to indurate, (2) to embolden, confirm, (3) to make callous or unfeeling and (4) to make persistent or obdurate in a course of action or state of mind. The word 'hardened' has also been defined to mean 'made hard', indurated; rendered callous; hard‑hearted; obdurately determined in a course. The same dictionary gives the meaning of the word 'dangerous', inter alia, as fraught with danger or risk; perilous, hazardous, unsafe. " Again at page 941 of the same judgment, the Hon'ble Court observed as under: "The provision under consideration here is a proviso to the same subsection, and, therefore, it will be reasonable to construe it in the same manner authorizing a Court to take into consideration the evidence collected by the prosecution for purposes of determining whether the accused is a criminal of the categories prescribed therein. Of course the Court can‑take into consideration and indeed in most of the cases it will take into consideration other materials produced by the prosecution in order to show that the case falls within the prohibitions contained in the fourth proviso."

8. Examining the conduct of the petitioner Mustafa in the light of the afore‑referred observations, prima facie, we find that there is material on record that he snatched licensed rifle from Muhammad Hanif deceased, felled him down, kept a guard so that other eye‑witnesses could not intervene and facilitated the co‑convicts to cause as many as twenty two incised injuries including the amputation of right hand and right leg of the deceased. A tentative assessment of the afore‑referred material, prima facie, would persuade us to believe that he acted in a manner which reflects that he is hard hearted, callous and of a desperate character. The Court while refusing to suspend the sentence on statutory ground is not supposed to touch the merits of the case but as held in Moundar's case the Court can "take into consideration the evidence collected for purposes of determining whether the accused is a criminal of the categories prescribed therein".

9. We are, therefore, not inclined to suspend his sentence. The petition fails and is hereby dismissed. H.B.T./M‑545/L/ Petition dismissed.