2012 P Cr (PLP)

MUHAMMAD ALI MAZHAR, J.

The appellant has filed this Appeal under section 410, Cr.P.C. against judgment dated 28-9-2011, passed by Special Judge, Anti-corruption, Sukkur in Special Case No.69 of 2007, whereby appellant was convicted and sentenced to suffer R.I. for three years with fine of Rs.60,

000. This appeal was admitted to regular hearing on 6-10-2011. However, the appellant has filed this application under section 426, Cr.P.C. for suspension of his sentence and release on bail pending adjudication of instant appeal.

2. Brief facts of the case are that an F.I.R. No.5 of 2007 was lodged against the appellant under section 409, P.P.C. read with section 5(2), of the Prevention of Corruption Act-II of 1947, at ACE, Naushehro Feroze that during Crop Season 2004-05, appellant was posted as Food Supervisor and Incharge Wheat Procurement Centre, Tharushah. Allegation against the appellant was that he misappropriated 255 bags of wheat, therefore, report was sent to District Food Controller and after such report appellant deposited a sum of Rs.2,15,000 and he further deposited fine equivalent to cost of 40 bags of wheat with Bardana at wheat procurement centre. It was further alleged that appellant misappropriated a sum of Rs.61,760 and caused wrongful loss to the government exchequer.

3. The learned counsel for the appellant in support of this application argued that Anti-Corruption Court has no jurisdiction to try the appellant as the case did not fall within the purview of corruption as the entire amount has been returned back. He further argued that while awarding sentence, trial Court has failed to consider whether any illegal gratification was received by the appellant. Entire judgment impugned in this appeal is based on misreading and non-reading of evidence. Neither the appellant was previously convicted nor he is hardened or desperate criminal and the complainant who belongs to same department had involved appellant with mala fide intention in a false case. During pendency of the case, appellant was on bail. Finally he argued that this is a case of short sentence and due to huge backlog of cases, chances of early disposal of this appeal is remote and since the appellant was on bail during trial, therefore, learned counsel argued that during pendency of this appeal, the sentence may be suspended and he be released on bail. In support of his arguments, the learned counsel relied upon following case-law:-- 2001 YLR 403 (Nazir Ali v. The State). In this case, learned Division Bench of this court allowed the application moved for suspension of sentence under section 426, Cr.P.C. on the ground that the punishment awarded to the appellant is only for five years which is short sentence and disposal of main appeal would take sometime, therefore, sentence awarded to the appellant was suspended.

4. Conversely, the learned DPG for the State argued that since the appellant has committed crime against the society and misappropriated funds and caused loss to government exchequer, therefore, he is not entitled for any lenient view and no case for suspension of sentence is made out as the trial Court after application of judicial mind decided case in which guilt of the appellant was proved. In support of his contentions, he relied upon the following case-law:-- (1) PLD 2006 SC 483 (Muhammad Saleem v. The State). In this case, Hon'ble Supreme Court held that appellate court, in exercise of its powers under section 426, Cr.P.C, may in a suitable case, suspend the sentence of a convict and grant him bail pending disposal of his appeal and notwithstanding absence of any material difference in principle governing for grant of bail under sections 497 and 426, Cr.P.C., consideration for suspension of sentence and grant of bail pending trial may not be the same, therefore, distinction must be adhered to for exercise of power under both the provisions in proper manner. (2) PLD 2008 Karachi 516 (Abdul Qadir v. The State). In this case, learned Single Judge of this court held that while hearing an application under section 426, Cr.P.C., deeper appreciation of evidence was not required. Bail, pending appeals in the offences falling under the prohibitory clause, could not be granted, unless it was shown that conviction was based on no evidence or inadmissible evidence and was not ultimately sustainable. Grant of bail without considering or ascertaining question of guilt or innocence on merits through appraisal of evidence was not justified.

5. It is a fact that the present appeal pertains to year 2011 and due to huge backlog of cases, it will take sufficient time to decide. On the similar ground in the case of short sentence, the learned Division Bench of this court in the case reported in 2011 YLR 403, (Nazeer Ali alias Nazeer v. State), held that disposal of appeal may take more time, therefore, sentence awarded to the appellant was suspended. In another case reported in 2007 PCr.LJ 1035, (Shafquat Mehmood v. State), the learned Division Bench of this court has dealt with section 426, Cr.P.C. and in this case also sentence was only for five years and out of which appellant remained one year and 10 months in jail and remaining portion of sentence was only three years. The learned Division Bench in this case went on to hold that in view of backlog of cases it was obvious that appeal filed by the accused could not be disposed of in near future, therefore, sentence awarded to the appellant was suspended and he was ordered to be released on bail subject to his furnishing surety. The power of Appellate Court under section 426(1), Cr.P.C. is not limited and court may pending disposal of appeal, suspend the sentence of a convict in an appropriate case in its discretion for good and sufficient reasons, but such power of suspension of sentence and grant of bail is not wider than that of under section 497, Cr.P.C. Consideration for suspension of sentence and grant of bail pending trial may not be the same, therefore, distinction must be adhered to for exercise of power under both the provisions in proper manner. Reference can be made to PLD 2006 SC 483 (Muhammad Saleem v. The State) The honourable Supreme Court in its judgment reported in PLD 2002 SC 845 (Allah Ditta Khan v. State), held that it was not mandatory, obligatory and bounden duty of the High Court to have examined the case on merits and should have dilated upon the contentions as agitated in depth while deciding application under section 426, Cr.P.C. for the simple reason that appraisal of evidence in depth is neither warranted nor desirable while dilating upon and deciding such application. A Court should confine itself to the judgment assailed before it. A thorough scrutiny of evidence and its evaluation should be made while adjudicating upon the appeal as it would be opportune moment for doing so and not while deciding the application moved under section 426, Cr.P.C. as it would be a premature stage. A conviction cannot be set aside while exercising jurisdiction as conferred under section 426, Cr.P.C. on the grounds with reference to evidence and merits of the case which certainly require a thorough probe and deeper scrutiny of evidence which should be avoided. The discretion has to be exercised judiciously by considering the relevant contention raised requires consideration of merits, the Appellate Court would refrain from entertaining such contentions. At this stage, the Court cannot enter into a reappraisal of evidence which should be considered at the time of hearing of the appeal.

6. The learned counsel for the appellant pointed out some flaws in the impugned judgment which will be examined in detail at the time of regular hearing of appeal. The present application has been moved for bail on the sole ground of short sentence and reliance has been placed on two orders of this court which are directly attracting and germane to the facts and circumstances of the present case.

7. For the foregoing reasons, the sentence awarded to the appellant by the trial court is hereby suspended and the appellant is released on bail subject to his furnishing solvent surety in the sum of Rs.2,00,000 (Rupees two lacs) with PR bond in the like amount to the satisfaction of Additional Registrar of this Court. Application is disposed of accordingly. H.B.T./G-47/K Sentence suspended.