1995 P Cr (PLP)

Masud Sadiq Mirza for the State. Hussain Aziz Bhatti for the Complainant. Abdul Aziz petitioner was convicted by Hakim Syed Akhtar Irshad, Additional Sessions Judge, Lahore, under sections 302 and 447, P.P.C. vide judgment/order, dated 27‑6‑1992 and sentenced under section 302, P.P.C. to imprisonment for life and a tine of Rs.20,000 and in case of default in payment of fine further R.I. for two years. He was also convicted under section 447, P.P.C. and sentenced to imprisonment for three months' R.I. and a fine of Rs.500 and in case of default in the payment of fine further R.I. for 10 days. Both the sentences were ordered to run concurrently. The benefit of section 382‑B, Cr.P.C. was also granted to the petitioner.

2. The petitioner appealed against his conviction and sentence by way of Criminal Appeal No.588 of 1992. The said appeal is still pending in this Court.

3. The petitioner has now been in jail after his conviction for more than two years. Hence, this application under section 426 Cr.P.C. for the suspension of sentence and grant of bail.

4. Section 426, Cr.P.C. was added to the Code of Criminal Procedure, 1898, by the Law Reforms Ordinance of 1972. Prior to this addition by the Law Reforms Ordinance, 1972, an inordinate delay in investigation, inquiry or trial of an accused person used to be considered per se as a ground for the grant of bail. The leading case on the subject was the case of Gushtasab Khan v. Crown reported in P L D 1956 FC 117 wherein Mr. Justice A.R. Cornelius, the then Chief Justice of the Federal Court considered a delay of four years as sufficient ground for the grant of bail. However, subsequently, in the case of Riasat Ali v. Ghulam Muhammad reported in P L D 1968 SC

353. Mr. Justice Sajjad Ahmad was of the view that even a delay of six months can be sufficient ground for the grant of bail.

5. Be that as it may, no fixed period in the matter of delay was available, and therefore, there was no guideline for the superior Courts in this context, and decision had to be delivered on case to case basis.

6. It was in this background that subsection (1‑A) was added to section 426, Cr.P.C. of 1898 by the Law Reforms Ordinance, 1972. The raison d'etre of‑this addition being that the prevailing uncertainty in this area should be brought to an end, and therefore, a classification of offences period wise was created by virtue of subsection (1‑A), clauses (a), (b) and (c). Subsection (1‑A) of section 426, Cr.P.C. lays down a general principle by providing that "an Appellate Court shall, unless for reason to be recorded in writing it otherwise directs, order a convicted person to be released on bail ...." There is no reason why the benefit of subsection (1‑A) of section 426, Cr.P.C. which was added by the Law Reforms Ordinance, 1972 should be withheld from a convicted person whose appeal has not been heard according to the classification given in clauses (a), (b) and (c) of subsection (1‑A) of section 426, Cr.P.C. that is why it has been laid down that "unless for reasons to be recorded in writing it otherwise directs", where for example the convict has A himself occasioned the delay, thus by his conduct he himself would be depriving himself of the benefit created by the Law‑makers. However, the principle remains that whatever benefit has been created by the Law‑makers must be given to the accused as a matter of right and not as a matter of discretion.

7. In the instant case, the statutory period has admittedly expired, which entitles the petitioner to have his sentence suspended and to be released on bail. Accordingly, the sentence of the petitioner is suspended and he g is granted bail provided he furnishes bail bond in the sum of Rs.50,000 with two sureties each in the like amount to the satisfaction of A.C./Duty Magistrate, Lahore. N.H.Q./AS‑739/L Sentence suspended.