P L D 2014 Lahore 574 (PLP)

MUHAMMAD TARIQ ABBASI, J.

This single order is intended to decide (i) Crl. Misc. No.84-M/2013 "TALIB HUSSAIN v. THE STATE, ETC", (ii) Crl. Misc. No.625-M/2013 "AMJAD FAROOQ v. THE STATE, ETC", (iii) Crl. Misc. No.450-M/2013 "ANWAAR v. THE STATE, ETC", (iv) Crl. Misc. N0.127-M/2014 "MUHAMMAD SAFDAR v. THE STATE, ETC", (v) Crl. Misc. No.937-M/2013 "QAZAFI v. THE STATE, ETC", (vi) Crl. Misc. No.40-M/2014 "MUHAMMAD BILAL v. THE STATE, ETC" and (vii) Crl. Misc.No.81-M/2014 "MUHAMMAD ASLAM v. THE STATE, ETC" as all these petitions have been filed under section 426(2B) Cr.P.C. to seek suspension of sentence, after grant of leave to appeal by the Hon'ble Supreme Court of Pakistan in respective cases, and involve similar question of law relating to an objection raised by the learned Deputy Prosecutor General .that an application under section 426(2B) of Cr.P.C. is only competent, before the High Court, if it at the time of deciding an appeal, imposes or maintains the sentence and grants Special Leave to Appeal to the Supreme Court of Pakistan.

2. For convenience the above mentioned provision is re-produced herein below:- "

426. Suspension of sentence pending appeal. Release of appellant on bail.--(1) Pending any appeal by a convicted *person, the Appellate Court may, for reasons to be recorded by it in writing, order that the execution of the sentence or order appealed against be suspended and, also, if he is in confinement, that he be released on bail or on his own bond. (2) The power conferred by this section on an Appellate Court may be exercised also by the High Court in the case of any appeal by a convicted person to a Court subordinate thereto. [(2-A) [Subject to provisions of section 382-A] When any person other than a person accused of a non-bailable offence is sentenced to imprisonment by a Court, and an appeal lies from that sentence, the Court, may, if the convicted person satisfies the Court that he intends to present an appeal, order that he be released on bail, for a period sufficient in the opinion of the Court to enable him to present the appeal and obtain the orders of the Appellate Court under subsection (1) and the sentence of imprisonment shall, so long as he is so released on bail, be deemed to be suspended.] [(2-B) Where a High Court is satisfied that a convicted person has been granted special leave to appeal to [the [Supreme Court]] against any sentence which it has imposed or maintained, it may, if it is so thinks fit order that pending the appeal the sentence or order appealed against be suspended, and also, if the said person is in confinement, that he be released on bail.] (3) When the appellant is ultimately sentenced to imprisonment or [imprisonment for life] the time during which he is so released shall be excluded in computing the term for which he is so sentenced."

3. Subsection (2B) of section 426 was inserted in the Code of Criminal Procedure, 1898, by way of second amendment, made through the Act IV of 1946, with the following object:

"Object.

In a recent case before the Privy Council it was held that a High Court possess no power to grant bail to a person who has been sentenced to imprisonment and who has been granted special leave to appeal to His Majesty in council against such sentence. At the same time their Lordships observed, "it may well be that a power to grant bail in such a case would be a proper and useful power to vest in a High Court.......But...... this desirable object can only be achieved by legislation." By this bill it is proposed to insert provision in section 426 of the Code of Criminal Procedure, 1898, conferring on High Courts the power to suspend sentence and grant bail where special leave to appeal to His Majesty in Council has been granted."

4. At that time, subsection (2B) of Section 426 of Cr.P.C. was having the following language:- "(2B) Where a High Court is satisfied that a convicted person has been granted special leave to appeal, to His Majesty in Council against any sentence which it has imposed or maintained, or has been granted leave to appeal to his Majesty in Council against an order of the Federal Court on an appeal from the High Court involving the imposition or maintenance of a sentence it may if it so thinks fit order that pending the appeal the sentence or order appealed against be suspended, and also, if the said person is in confinement, that he be released on bail."

5. The above mentioned amendment was a result of Privy Council judgment titled "Lala Jairam Das and others v. Emperor,"reported as AIR (32) 1945 Privy Council, 94, wherein, it was held that High Court in India has no power to grant bail to a convict to whom His Majesty in Council has given special leave to appeal against his conviction or sentence. Further, in the cited case it was held:- "It may well be that the case of an appeal from a High Court to His Majesty in Council was not within the contemplation of the framers of the Code. It may well be that a power to grant bail in such a case would be a proper and useful power to vest in a High Court. Their Lordships fully appreciate the propriety and utility of such a power, exercisable by Judges acquainted with the relevant _facts of each case, and (if exercised) with power to order that the bail period be excluded from the term of any sentence. But in their Lordships' opinion this desirable object can only be achieved by legislation. In the meantime there is a section of the Code to which, pending legislation, recourse may be had, and by means of which the ends of justice may be secured, viz., S.401 which enables the Provincial Government to "suspend" the execution of a sentence. As hereinbefore appears recourse has been had to this section on previous occasions. For the reasons indicated, their Lordships will humbly advise His Majesty that this appeal fails and should be dismissed. In view of the general importance of the question which has been raised and decided their Lordships make no order as to the costs of this appeal."

6. From the above mentioned, it is clear that at that time it was "His Majesty" who was competent to grant special leave to appeal, against conviction and sentence, passed by a High Court. At that time after decision of a criminal appeal, being functus officio, High Court concerned had got no power or authority to deal with any matter of suspension of sentence and grant bail. Therefore, it was considered appropriate that such a power should be exercised by High Court acquainted with the relevant facts of each case. Hence, required legislation to that effect was recommended and finally as stated above subsection, (2B) in section 426, Cr.P.C. was inserted.

7. After creation of Pakistan, Federal Laws (Revision and Declaration) Act 1951 was promulgated, whereby certain Acts and Ordinances mentioned in the First Schedule were completely repealed, some described in the Second Schedule were partially repealed, whereas, amendment in the laws,' described in The Third Schedule of the Act, 1951 were made. Accordingly, subsection (2B) of Section 426 of Cr.P.C. 1898 was amended in the following terms. "In subsection (2B) of section 426; for the words "His Majesty in Council" where they first occur the words "the Federal Court" shall be substituted." Thereafter, by President's Order No.1 of 1961 (CENTRAL LAWS (ADAPTATION) ORDER, 1961, further amendment was brought in section 426(2B) and for the word "Federal Court," the word "Supreme Court" was used. Under Articles 158 and 159 of the said Constitution, the appellate jurisdiction of the Supreme Court in Civil and Criminal matters was described as follows:- "

158. Appellate jurisdiction of the Supreme Court in civil matter.--(1) An appeal shall lie to the Supreme Court from any judgment, decree or final order of a High Court in civil proceedings-- (a) If the amount or value of the subject-matter of the dispute in the Court of first instance was, and also in dispute on appeal is, not less than fifteen thousand rupees or such other sum as may be specified in that behalf by Act of Parliament; or (b) If the judgment, decree or final order involves directly or indirectly some claim or question respecting property of the like amount or value; or (c) If the High Court certifies that the case is a fit one for appeal to the Supreme Court. (2) Notwithstanding anything in this Article, no appeal shall, unless an Act of Parliament otherwise provides, lie to the Supreme Court from the judgment, decree or final order of a Judge of a High Court sitting alone." "

159. Appellate jurisdiction of the Supreme Court in criminal matters.--An appeal shall lie to the Supreme Court from any judgment, final order or sentence of a High Court in criminal proceedings, if the High Court

(a) has on appeal ,reversed an order of acquittal of an accused person and sentenced him to death or to transportation for life; or (b) has withdrawn for trial before itself any case from any Court subordinate to its authority, and has in such trial convicted the accused person and sentenced him as aforesaid; or (c) certifies that the case is a fit for appeal to the Supreme Court; or (d) has imposed any punishment on any person for contempt of the High Court: Provides that where a certificate is issued under paragraph (c) of this Article an appeal shall lie subject to such rules as may be made in that behalf under paragraph 3 of the Third Schedule, and to such other rules, not inconsistent with the aforesaid rules, as may be made in that behalf by the High Court."

8. The above mentioned Articles clearly contend that besides other circumstances, for filing an appeal before the Supreme Court of Pakistan, one of circumstance was a certificate issued by the High Court that the case was a fit one for appeal to the Supreme Court.

9. Under Article 160 of the above said Constitution, appeal to the Supreme Court by special leave of the Court was also granted in the following terms:- "

160. Appeal to the Supreme Court by special leave to the Court.

Notwithstanding anything in this Part, the Supreme Court may grant special leave to appeal from any judgment, decree, order or sentence of any Court or tribunal in Pakistan, other than a Court or tribunal constituted by or under any law relating to the Armed Forces."

10. When the Constitution of 1956, was repealed and the Constitution of 1962 was promulgated, in it through Article 58, appellate jurisdiction of the Supreme Court was described as follows:-- "

58. Appellate jurisdiction of Supreme Court.

(1) Subject to this Article, the Supreme Court shall have jurisdiction to hear and determine appeals from judgments, decrees, orders or sentences of a High Court. (2) An appeal to the Supreme Court from a judgment decree order or sentence of a High Court shall lie as of right where

(a) the High Court certifies that the case involves a substantial question of law as to the interpretation of this Constitution; (b) the High Court has sentenced a person to death or to transportation for life; or (c) the High Court has imposed punishment on a person in pursuance of the powers conferred on the Court by Article 123. (3) An appeal to the Supreme Court from a judgment decree order or sentence of a High Court in a case to which clause (2) of this Article does not apply shall lie only if the Supreme Court grants leave to appeal."

11. It is notable that in the Constitution of Pakistan, 1962 under the Article 58, the above stated Articles 158, 159 and 160 of the Constitution of Pakistan, 1956 were united and the word "Special Leave to Appeal" was changed to the word "Leave to Appeal".

12. In the Provisional Constitution of 1972, under Article 186, the jurisdiction of the Supreme Court vested through the Article 58 of the Constitution, 1962 was kept the same.

13. Ultimately, the Constitution of the Islamic Republic of Pakistan, 1973 was promulgated, which still is enforced. Under Article 185 of the said Constitution, the appellate jurisdiction of the Supreme Court of Pakistan has been described in the following language:- "

185. Appellate jurisdiction of Supreme Court.--(1) Subject to this Article, the Supreme Court shall have jurisdiction to hear and determine appeals from judgments, decrees, final orders or sentences of a High Court. (2) An appeal shall lie to the Supreme Court from any judgment, decree, final order or sentence of a High Court

(a) if the High Court has on appeal reversed an order of acquittal of an accused person and sentenced him to death or to transportation for life or imprisonment for life; or, on revision, has enhanced a sentence to a sentence as aforesaid; or . (b) if the High Court has withdrawn for trial before itself any case from any Court subordinate to it and has in such trial convicted the accused person and sentenced him as aforesaid; or (c) if the High Court has imposed any punishment on any person for contempt of the High Court; or (d) if the amount or value of the subject matter of the dispute in the Court of first instance was, and also in dispute in appeal is, not less than fifty thousand rupees or such other sum as may be specified in that behalf by Act of Parliament and the judgment, decree or final order appealed from has varied or set aside the judgment, decree or final order of the Court immediately below; or (e) if the judgment, decree or final order involves directly or indirectly some claim or question respecting property of the like amount or value and the judgment, decree or final order appealed from has varied or set aside the judgment, decree or final order of the Court immediately below: or (f) if the High Court certifies that the case involves a substantial question of law as to the interpretation of the Constitution. (3) An appeal to the Supreme Court from a judgment, decree, order or sentence of a High Court in a case to which clause (2) does not apply shall lie only if the Supreme Court grants leave to appeal."

14. Order XIII of the Supreme Court Rules, 1956 was relating to the petitions for Special Leave to Appeal in Civil proceedings. Relevant provision was as under:- "

1. A petition for special leave shall be lodged in this Court within sixty days of the judgment or order sought to be appealed from or as the case may be within thirty days from the date of the refusal of grant of certificate under Article 58(2) (a) of the Constitution, by the High Court. Provided that the Court may for sufficient cause extend the time." Whereas Order XXIV of the above mentioned rules was dealing with the petitions for Special Leave to Appeal, in criminal proceedings. The relevant provision was as follows:-- "

1. Save as hereinafter provided the provisions with respect to petitions for special leave to appeal in civil proceedings contained in Order XIII of this Part of the Rules, shall with necessary modifications and adaptations apply to applications for special leave to appeal in criminal matters:"

15. At present the Supreme Court Rules, 1980 are in field. Order XIII of the said rules, deals with the petitions for leave to appeal in Civil proceedings, whereas, Order XXIII of the rules relates to the petitions for leave to appeal and appeals arising therefrom in criminal proceedings.

16. Order XIII of the Supreme Court Rules, 1980 deal with the petitions for leave to appeal in civil proceedings, the relevant portion whereof reads as under:-- "

1. A petition for leave shall be lodged in this Court within sixty days of the judgment, decree or final order sought to be appealed from or as the case may be, within thirty days from the date of the refusal of grant of certificate under Article 185(2)(f) by the High Court: Provided that the Court may for sufficient cause extend the time.

2. A petition for leave to appeal shall state succinctly and clearly [all points of law which arise for determination and], all such facts as it may necessary to state in order to enable the Court to determine whether such leave ought to be granted, and shall be signed by the counsel and or Advocate-on-Record for the petitioner or by the party himself if he appears in person. The petition shall deal with the merits of the case only so far as is necessary for the purpose of explaining and supporting the particular grounds upon which leave to appeal is sought and where petition is moved through an Advocate-on-Record, it shall cite all previous decisions of the Court, which to the best of his knowledge, bear on the question sought to be raised in the petition."

17. The relevant paragraphs of Order XXIII of the Supreme Court Rules, 1980 are as under:-- "I. Save as hereinafter provide the provisions with respect to petitions for leave to appeal in civil proceedings contained in Order XIII of this Part shall mutatis mutandis apply to petitions for leave to appeal in criminal matters except that no court fee, process fee or search fee shall be charged but the copying fee shall be charged except in petitions through jail.

2. A Petition for leave to appeal in criminal matter shall be lodged within thirty days from the date of judgment or final order sought to be appealed from, or as the case may be, from the date of the order refusing certificate under sub-clause (f) of clause (2) of Article 185 of the Constitution.' From the above mentioned provisions and discussion, it is clear that special leave to appeal/leave to appeal and certificate issued by a High Court that a case is fit for appeal to the Supreme Court are two different proceedings. "Special Leave to appeal," which at present is termed as "leave to appeal" is always granted by the Supreme Court of Pakistan, whereas, the above mentioned certified is issued by a High Court.

19. There is no provision, in any law of Pakistan, which provides any authority to any High Court to issue leave to appeal, in any manner. The same is only the prerogative of the Supreme Court of Pakistan being vested to it by the Constitution and the Rules.

20. Resultantly, we are of the confirmed view that when against any sentence, imposed or maintained by a High Court, a convicted person is granted special leave to appeal by the Supreme Court of Pakistan, then under section 426(2B) of the Cr.P.C., a High Court, pending the appeal, before the Supreme Court, may suspend the sentence or order, appealed against and release the convict on bail. As a necessary corollary, the objection raised by the learned Deputy Prosecutor General is overruled.

21. Consequently, it is directed that all the petitions be sent back to the respective learned Benches, for proceedings and decision on merit. MWA/T-14/L Cases remanded.