P L D 1997 Karachi 361 (PLP)

This application under section 426(1-A)(c), Cr.P.C. has been filed on behalf of the appellant who has been convicted by the Sessions Judge, Thatta, in Session Case No.38 of 1991 under sections 302 and 337-A(i), P.P.C. who has been awarded sentence to undergo imprisonment for life and to pay Rs.50,000 as compensation to the heirs of the deceased Muhammad and in default of payment of compensation, to undergo further R.I. for six months.

2. Appeal was filed on 18-5-1993 and its pending disposal ever-since then. Mr. Abdul Mujeeb Pirzada, the learned counsel for the appellant relying on 1991 SCMR 1459 has pointed out that the appeal has to be decided within a period of two years and, in the instant case, it is now almost four years (three years and ten months), but the appeal has not been finally disposed of. Hence the appellant may be allowed the concession of bail.

3. Mr. Suleman Habibullah, counsel for the State, frankly concedes in view of the authority reported in 1995 PCr.LJ 1522, where the suspension of sentence, according to him has been held in such a case for grant of bail under section 426(1-A)(a)(b) and (c), Cr.P.C. is to be considered as a rule.

4. Section 426(1-A) provides as under:-- "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 ... ... .. ... (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." The plain reading of the above provision which clearly show that the Legislature has purposely inserted the word "shall" to make it mandatory. The words "unless for reasons to be recorded in writing it otherwise", sufficiently indicate that the Appellate Court shall order a convicted person to be released on bail 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. Thus, subsection (1-A) of section 426, Cr.P.C. does not make it mandatory for the Court to record in writing the reasons for allowing suspension of execution of sentence but it makes it a rule suspend the execution of the sentence in cases covered by clauses (a), (b) and (c) of the said provision. Meaning thereby that the refusal was an exception and required by law to be reasoned in writing in case of refusal. It has been laid down in the authorities referred to by the learned counsel for the. parties that the suspension of sentence on statutory grounds under any clause of section 426(1-A), Cr.P.C. is a rule and its refusal an exception for which reasons have to be recorded in writing. -

5. In view of the above facts and law, I accept this application and suspend the execution of the sentence, passed against the appellant by the Sessions Judge, Thatta, on 27-4-1993. The appellant shall be released on bail after he furnishes a solvent surety in the sum of Rs.2,00,000 and P.R. Bond in the like amount to the satisfaction of the Nazir of this Court. N.H.Q./1-9/K Sentence suspended.