1989 P Cr (PLP)

1978 SCMR 149; 1979 SCMR 270; 1988 P Cr. L J 1797 and 1988 MLD 1999 ref. Abdul Haleem Pirzada for Appellants. Zawar Hussain Jafferi, A . A .‑G . for the State. This application . under section 426, Cr. P. C. has been pressed on behalf of six appellants," namely, Shahan, Aitbar, Noor Muhammad, Allahwarayo, Ghulam Rasool and Imamdino who have alongwith three other appellants, been convicted under sections 304, 325, 326, 323, 114, 148, 149, P.P.C. and sentenced to 10 years' R.I. under section 304/149, P.P.C. and to lesser periods for other offences. A perusal of the impugned judgment indicates that there was a cross case against the complainant as' well inasmuch as the fight had taken place consequent to an earlier scuffle between two minor boys. I have heard Mr. Haleem Pirzada for the appellants and Mr. Zawar Hussain Jafferi, A.A.‑G. for the State. It has been urged by the learned counsel for the appellants that bail application has been presented only on behalf of such accused persons who had not caused' any injury either to the deceased or to the complainant. The injuries caused to other persons of the complainant party with the lathis allegedly held by the appellants and others were not found to be of A grievous nature. It is only by application of section 149, P.P.C. that these appellants have been convicted and sentenced as mentioned above. The learned counsel for the appellants has invited my attention to the authorities reported in 1978 SCMR 149, 1979 SCMR 270, 1988 P Cr. L J 1797 and 1988 MLD 1999 to contend that since no overt act has been attributed to any of the appellants in the commission of the murder and further that since it was an incident of free fight, it is a good case for suspension of sentence and grant of bail to the appellants. Mr. Zawar Hussain Jafferi, A.A.‑G. has vehemently opposed this application by contention that not with standing the fact that there were counter‑cases the trial Court has held the appellants to be members of the unlawful assembly and that they were aggressors. Counter‑case filed by the accused party has failed. He submitted that it is after due evaluation of the evidence led by the prosecution that the learned trial Court has reached the above conclusion and convicted the appellants. I have given my due consideration to the submissions made at the Bar. Generally in cases where the convicts are sentenced to a long term of imprisonment refusal of suspension of sentence and grant of bail under section 426, Cr.P.C. is the rule, but there is, at the same time, no specific bar to the exercise of powers suspending the sentence and grant of bail by the appellate Court in such cases as well. The above‑noted cases cited by the learned counsel for the appellants do lend support to this view. Without commenting on the merits of the case lest it should prejudice the case of any party, I am of the opinion that in the instant case upon a bare perusal of the impugned judgment dealing with the prosecution evidence which led the learned trial Court to believe' the presence and involvement of these appellants in the commission of the offence, I find it' to be a fit case to grant bail application in respect of the convicts‑appellants Shahan son of Ahmed Bukhsh, (2) Aitbar alias Ilyas son of Essa Khan, (3) Noor Muhammad son of Razo, (4) Allah Warayo son of Rajib, (5) Ghulam Rasool son of Muhammad Arif and Imam Dino son of Chakar Khan and order the ,suspension of the sentences awarded to them till disposal of the appeal and also to admit them on bail subject to their furnishing one surety in the sum of Rs.50,000 each and P. R. bond in the like amount to the satisfaction of the Additional Registrar of this Court. M.A.K./M‑836/K??????? Bail granted