1999 PLP 2382 (MLD)

Through this order, I intend to dispose of two separate applications filets under section 426, Cr.P.C. on behalf of the above appellants since they arise from a common judgment/conviction passed by learned Special Judge (Central-II), Karachi. Brief facts of the case, as disclosed, in a letter dated 17-10-1990 addressed, to the Deputy Director, F.I.A. Crime Circle-I Karachi by Security Officer, "A" Company Commander, A.S.F., Karachi (EX

21), are that on the same day at about 11-20 a.m. one passenger Misbahul Hassan Zaidi of North Nazimabad, Karachi was leaving for Dubai by Flight EK-601. That after his clearance by the Customs Authority, he was again searched by the A.S.F. staff when one paper carton was recovered from his hand bag which was found containing huge quantity of different currencies including the U.S. dollars, Indian rupees, dinars, riyals, yen, franc and Deusche mark as well as Travellers cheques. This complaint was incorporated in the F.I.R. The present two appellants were charged alongwith accused Muhammad Qasim. The main accused from which the recovery was made namely Misbahul Hassan Zaidi died during the trial proceedings. Accused Muhammad Azam Chand Mian was declared absconder. The prosecution has examined Muhammad Uzair, Aqeel Ahmed Qureshi, Iqbal, Muhammad Maqbool, Abdul. Khaliq, Muhammad Nawaz Shaikh, Muhammad Shaft, Magistrate Shahzad Ali Naqvi, complainant Shabbirul Hassan Zaidi and lastly Investigating Officer Khaliquzzaman. On 26-6-1996 through impugned judgment appellant Wasimul Haque (Cr. Appeal No.72/96) and appellant Aslam Khan (Cr. Appeal No.73/96) were convicted and sentenced to suffer R.I. for three years each and .to pay fine of Rs.200,000 each or in default to undergo further imprisonment for six months each. Both the appellants were also extended benefit of section 382-B, Cr.P.C. by the trial Court. I have heard Mr. Sohail Muzaffar, Advocate for appellant Waseem-ul-Haque and Mr. S. Nasir Hussain Jaffery, Advocate for appellant Muhammad Aslam. I have also heard Mr. Roshan Ali Essani, Deputy Attorney-General for the State who has vehemently opposed grant of these applications. It was a,gued by Mr. S. Nasir Hussain Jaffery that the present set of convicts was earlier tried by the Court of Special Judge (Customs and Taxation) Karachi, on the same set of facts and were acquitted vide judgment dated 8-1-1994. He has filed copy of judgment as annexure 'B' with his memo of appeal. Following is the operative part of the judgment dated 8-1-1994 passed by the Special Judge (Customs and' Taxation) Karachi: "From the above discussions I have not the slightest doubt in my mind that the recovery and seizure is unlawful, illegal and ab initio void and could not be used for initiating prosecution and submission of a charge sheet against the accused persons in this Court under the Customs Act, 1969 and the charge-sheet submitted by the F.I.A. was unlawful and illegal and no proper and valid trial could be initiated on the basis thereof against the aforesaid accused persons. I, therefore, hold that the prosecution has failed to satisfy that the trial of the accused persons in Court was proper, valid and legal and I hold that the accused persons are entitled to be acquitted. Accordingly, I acquit accused Muhammad Aslam Khan, Waseem-ul-Haque and Muhammad Qasim. All of them are on bail and their bail bonds stand cancelled. In view of the above facts, it was argued by the learned counsel for the appellants that section 403, Cr.P.C. is attracted and the second trial was, therefore, illegal. On the other hand, learned Deputy Attorney-General white opposing these bail applications relied upon the case of Imdad Ali v. The State (1995 SCMR 823) wherein the Hon'ble Supreme Court refused to grant leave to appeal to a convict who was involved in a case under section 302, P.P.C. and was sentenced to undergo R.I. for 20 years. His application under section 426, Cr.P.C. was rejected by a learned Single Judge of the Lahore High Court who did not consider the merits of the case. It was argued before the Hon'bie Supreme Court that the disposal of application in such a manner without adverting to the merits of the case amounts to non-exercise of the jurisdiction by the High Court. It was observed by the Hon'ble Supreme Court that such contention has no merits and that the discretion exercised by the Judge of the Lahore High Court in declining to evaluate the evidence before disposal of the appeal suffers from no legal flaw. The petition seeking leave to appeal was dismissed. Recently, this Court in the case of Ranjho and others v. The State (PLD 1996 Karachi 313) refused to examine in detail the evidence on the grounds that it will amount to appraisal of entire evidence and that such discussion on merits is unwarranted by law while deciding an application under section 426, Cr.P.C. In this reported case, a learned Single Judge of this Court followed the rule laid down by a Full Bench of Hon'ble Supreme Court in the case of Bahar Khan v. The State (1969 SCMR 81) wherein it was observed that a person accused of a non-bail-able offence may not be released on bail unless strong grounds are made to appear that conviction is not liable to be sustained. The contention that the powers conferred on an appellate Court under section 426, Cr.P.C. to suspend a sentence pending hearing of appeal are wider than the power to. release an accused on bail under section 497/498, Cr.P.C. was repelled by the Hon'ble Supreme Court. Mr. Sohail Muzaffar and Mr. S. Nasir Hussain Jaffery, Advocates appearing for appellants/convicts have referred to the following cases where in an appeal the sentences were suspended by such appellate Courts after consideration of the case on merits: (1) Sattu Khan and others v. The State (1988 SCMR 241); (2) Ali Asghar and another v. The State (1991 PCr.LJ 746); (3) Abdul Latif v. The State (1995 PCr.LJ 1792); (4) Muhammad Akram v. The State (1994 SCMR 277); (5.) Zulfiqar Ali v. The State (1994 SCMR 548). In the case cited at Serial No. l above, (Sattu Khan and others v. The State) a Full Bench of the Hon'ble Supreme Court granted bail to the petitioner convicted under section 307, P.P.C. who was sentenced to undergo four years R.I. after considering merits of the case. This case was followed by a learned Single Judge of this Court Mr. Qaiser Ahmed Hamidi, J. (as he then was) in the case cited at Serial No.2 (Ali Asghar v. The State). Several other cases were also considered in the case of Ali Asghar (supra) wherein it was held that the right of a convict for suspension of sentence under section 426(1), Cr.P.C. remains intact and is not affected by subsection (1-A) of section 426, Cr.P.C. Both the appellants in the reported case were convicted under section 489-C, P.P.C. and were sentenced to undergo R.I. for four years and to pay a fine of Rs.100,000 each. In the case of Abdul Latif cited at Serial No.3, a learned Single Judge of Peshawar High Court suspended the sentence awarded to the appellant who was convicted under sections 161 and 165-A, P.P.C. read with section 5(2) of the Prevention of Corruption Act, 1947 and sentenced to undergo R.I. for two years with a fine of Rs.10,000 or in default to further sentence of six months R.I. In the case cited at Serial No.4 above (Muhammad Akram v. The State) as well as in the case cited at Serial No.5 (Zulfiqar Ali v. The State), the Hon'ble Supreme Court suspended sentence of four years R.I. and two years R.I. respectively awarded to the appellants under section 161, P.P.C. read with section 5(2) of the Prevention of Corruption Act, 1947. It is pertinent to note that in the case of Muhammad Akram it was held by the Hon'ble Supreme Court that if an appellant insists on securing of an order under section 426, Cr.P.C., the Court had to consider the prayer and to dispose of such application on merits, even if it could not be covered by section (1-A) of section 426, Cr.P.C. The-view of a learned Single Judge of Lahore High Court that the disposal of an application under section 426, Cr.P.C. requires reappraisal of evidence which, according to the learned Judge was not advisable nor admissible at that stage was declared by the Hon'ble Supreme Court to be such "reasons" unwarranted by section 426, Cr.P.C. There are several other cases where High Courts and the Hon'ble Supreme Court have granted bail and suspended sentence pending appeal after considering the case of the appellants on merits. A Full Bench of Hon'ble Supreme Court in the case of State v. Shah Sawar (1969 SCMR 151) refused to grant leave against an order of Lahore High Court whereby respondent was released on bail pending appeal. It was held, inter alia, that there can be no general rule that a person convicted of a bailable offence is entitled as of right to be enlarged on bail during pendency of his appeal against conviction and that the bail is always in the discretion of the Court which is to be exercised upon the facts and circumstances of each case according to sound judicial principle. Again in the case of Abdul Ghaffar v. Anwarul Hassan and others (1978 SCMR 149) another Full Bench of Hon'ble Supreme Court refused to grant leave to appeal to a complainant against the order of Lahore High Court suspending sentence of respondent who was convicted and sentenced under section 302/34, P.P.C. to imprisonment for life. It was held by the Hon'ble Supreme Court that the appellate Court's decision to grant bail is not fettered or restricted by reference either to the conviction or to the sentence passed against the appellant by the trial Court but like all discretions vested in the Courts, the discretion in this connection is to be exercised judicially. It was further held that it is not necessary for the trial Court to give its assessment of the prosecution case in order not to pre judge the hearing of an appeal. (For further reference see the cases of Kela and others v. The State (1968 PCr.LJ 185), Barkat Hussain v. The State (1995 SCMR 1109), Raja Sondha Khan v. Muhammad Asghar and another, (1995 SCMR 1149), Liaqat and another v. The State (1995 SCMR 1819). As a result of the above discussion and from the resume of case law cited above, following principles are reproduced in order to attract section 426(1), Cr.P.C.:

(i) That an applicant, as a matter of right, is not entitled for suspension of sentence on consideration of merits of the case. This may not be confused with the right of an appellant to seek suspension of sentence on the grounds of statutory delay as provided under subsection (1-A). (For reference see the case of Liaqat and another v. The State 1995 SCMR 1819). (ii) That an Appellate Court shall not suspend a sentence under section 426(1), Cr.P.C. unless strong grounds are made to appear that the conviction is not liable to be sustained. (See Bahar Khan v. The State 1969 SCMR 81). (iii) That the quantum of sentence awarded to an appellant/convict, nature of offence for which such appellant was convicted and the period of detention undergone may be treated as prime consideration for suspension of sentence. (See Abdul Ghaffar v. Anwarul Hgssan and others 1978 SCMR 149). (iv) That in case, if an appellant insists the Appellate Court for evaluation of evidence on merits, the Appellate Court is required to tentatively evaluate the same and, thereafter, exercise its discretion according to the well-established principles of fair and independent administration of justice. (See Muhammad Akram v. The State 1994 SCMR 277). (v) An Appellate Court is not required to give its reasoning for suspension of sentence in detail but such order should be a speaking order and must reflect that the discretion was judicially exercised by the Appellate Court. (See The State v. Shah Sawar 1969 SCMR 151). (vi) That the powers of the Appellate Court under section 426, Cr.P.C. are neither wider nor more than the powers conferred under sections 497, and 498, Cr.P.C. on the trial Court. In view of the above quoted principles, I have considered the case of both the appellants. The State counsel was not able to meet the arguments of appellants that after their acquittal by the Special Court (Customs & Taxation) they were re-tried by the Special Court of Anti-Corruption and were illegally convicted in violation of Article 13(a) of the Constitution of Islamic Republic of Pakistan, 1973 and section 403, Cr.P.C. In this connection, reference to the cases of Ismail Abdul Rehman v. Muhammad Sadiq and 3 others (PLD 1990 Karachi 286) and Muhammad Ashraf and others v. The State (1995 SCMR 626) may not be out W context. The circumstances of the case of Ismail Abdul Rehman are identical to the present case as in the reported case also the petitioners were being prosecuted under section 156 of the Customs Act, 1969 as well as under section 5(2) of Prevention of Corruption Act, 1947. It was held by a Division Bench of this Court that in order to attract the operation of Article 13 of the Constitution, 1973 the petitioner is required to show that he was prosecuted for the same offence when proceedings are taken before the Court of Special Judge, Anti-Corruption (Central), Karachi. The word prosecution as appearing in Article 13 was defined to mean an initiation or starting of proceedings of criminal nature before a Court of law or a judicial tribunal. It was further held that no person shall be prosecuted or punished for the same offence more than once. (Under lined by me). In the instant case, a strong presumption of innocence was attached to the appellants after their acquittal in an earlier trial. The names of present two appellants were not mentioned in the F.I.R. nor any role is assigned to them. Both the appellants were arrested two days after the alleged incident; as such their presence on the place of incident, to some extent, becomes doubtful. That the man accused namely Misbahul Hassan Zaidi from whom the Foreign Currency was recovered died during proceedings. Another co-accused Muhammad Qasim was acquitted vide the same judgment. All these factors, prima facie, establish good and strong ground for suspension of Sentence. It was in view of above facts and law, that through a short order, on 17-7-1996 the conviction/ sentence awarded to the appellants was suspended and both the appellants were ordered to be released on bail upon furnishing two sureties each in the sum of Rs.1,00,000 (Rupees one lac) to the satisfaction of the Nazir of this Court. These are the reasoning for the said short order. Q.M.H./W-25/K. Sentence Suspended,