1997 PLP 2881 (MLD)

Safair v. State 1996 PCr.LJ 1506 ref. Ch. M. Ashraf Akhtar for Appellants. Mian M. Tayyab Wattoo for the Complainant. Date of hearing: 19th November, 1996. This order shall dispose of an application under section 426(1‑A)(c), Cr.P.C. having been moved by Azhar Ahmad and Allah Ditta sons of Ahmed Yar, who faced trial in case (F.I.R. No.71 of 1995) under sections 365/324/34, 336/34 and 337/34, P.P.C. registered at Police Station Takhat Mahal on 24‑11‑1992 and consequently they were convicted in Special Case No.48 of 1993 alongwith their co‑accused Mazhar alias Mazhari and Qutabuddin, for having damaged the vision of both the eyes of Bakhtiar Ahmed and completely crippling him. They were awarded following sentences:‑

(1) Azhar: 10 years R.I. for causing Itlaf‑i‑Salahiyyat‑i‑Udu regarding the right eye and Diyyat of Rs.1,70,000 under section 336/34, P.P.C. and five years R. I. for causing 'damage to the left eye under section 336/34, P.P.C. (2) Allah Ditta: 10 years R.I. for causing damage to the left eye and diyyat at Rs.1,70,000 and five years R.I. for causing damage to the right eye under section 336/34, P.P.C.

2. Their co‑accused/appellants Mazhar alias Mazhari and Qutabuddin joined them in moving an application which was taken up by this Court on 5‑12‑1995. Their sentences were suspended on statutory ground under section 426(1‑A)(c), Cr.P.C. and they were ordered to be released on bail subject to their furnishing bail bond in the sum of Rs.50,000 with two sureties each in the like amount, by means of order dated 5‑12‑1995. the application so far as it related to the present petitioners, namely Azhar and Allah Ditta, was not pressed and was, therefore, dismissed.

3. It has today been urged by the learned counsel for the petitioners Allah Ditta and Azhar that both of them alongwith their third brother Mazhar, were arrested on 1‑12‑1992 and eversince then they have been behind the bars. It was on 19‑10‑1993 that they were convicted and sentenced, as stated above and having remained behind the bars, for about four years, they are entitled to the suspension of their sentences because their appeals has not been decided within a period, two years of their conviction and there is little likelihood of its being heard and disposed of in the near future, in view of the heavy pendency of the work of similar nature.

4. Mian Muhammad Tayyab Wattoo, learned counsel for the complainant has, however, opposed this petition contending that the petitioners are hardened criminals. He was directed to place before the Court the record of the criminal cases or convictions recorded therein against the present petitioners but he has not been able to place any criminal record of the petitioners and has, on the other hand, submitted some record of other persons claiming to be the relatives of the petitioners. The said record is totally irrelevant. The learned counsel for the complainant has not at all been able to suggest that the petitioners are previous convicts or hardened criminals or that there are some other good reasons to disallow this application.

5. It is a settled principle of law as laid down in Safair v. The State (1996 PCr.LJ 1506) that section 426(1‑A), Cr.P.C. creates a right in favour of accused to be enforced, which cannot be ordinarily denied to him without any fault on his part for non‑disposal of his appeal within the statutory period. Under section 426(1‑A), Cr.P.C. an Appellate Court shall, unless for reasons to be recorded in writing it otherwise directs, order a convicted person to be released on bail who has been sentenced to imprisonment for life or imprisonment exceeding 7 years and whose appeal has not been decided within a period of two years of his conviction. The contention raised by the learned counsel for the complainant that they had acted in a cruel manner in damaging the vision of eyes of Bakhtiar Ahmad and crippling him, also cannot be considered at this stage because it relates to the merits of the case. Since the appeal has been pending hearing for more than three years and has not been fixed so far for final hearing, this petition is accepted, the sentences of the appellants/petitioners are suspended and they are released on bail subject to their furnishing bail bonds in the sum of Rs.2,00,000 (Rupees two hundred thousand) each with two sureties in the like amount each to the satisfaction of the Deputy Registrar of this Court. N.H.Q./M‑344/L???????????????????????????????????????????????????????????????????????????????? Sentence suspended.