2018 P Cr (PLP)

MUHAMMAD SALEEM JESSAR, J.

Through instant Miscellaneous Application under section 426, Cr.P.C., being No.7701/2015, appellant Lakhadino alias Lakhoo son of Mehmood Khatian seeks his release on bail by getting suspension of impugned judgment, which is part and parcel of Criminal Appeal No.S-130 of 2015, against the impugned judgment dated 10.09.2015, passed by learned Additional Sessions Judge, Matiari in S.C. No.69/2014 (Re: State v. Lakhadino Khatian) arising out of crime No.26/2014, under section 23(1)(a) of Sindh Arms Act, 2013, registered with PS Shahpur, District Matiari, whereby he had been convicted and sentenced to suffer R.I. for ten (10) years and fine of Rs.20,000/-. In case of default, learned trial Court has further ordered to suffer simple imprisonment for three (03) months more. However, benefit of section 382-B, Cr.P.C. was extended to him.

2. Mr. Ghulamullah Chang, learned advocate for appellant submits that the present case was offshoot of main case vide S.C. No.120/2014 (Re. State v. Lakhadino @ Lakhoo and others) for the offences punishable under sections 398, 401, P.P.C. arisen out of crime No.25/2014 of PS Shahpur in which case, he along with others was tried and has been acquitted by the Additional Sessions Judge, Matiari vide his judgment dated 09.09.2015. He further submits that almost same set of evidence comprising upon police personnel was in present case but the trial Court, had disbelieved the version of main case while believed their evidence in instant case. He further submits that the weapon allegedly recovered from the appellant was not sent to Ballistic Expert for his opinion and the arrival entry was also not produced by the prosecution during trial. He lastly submits that the appellant is in custody since 19.01.2014 to 28.08.2014 and again from 10.09.2015 to date, therefore, his case requires further inquiry and he prayed for his release on bail. In support of his contention, he has relied upon following cases reported in 1992 MLD 2301, 2004 PCr.LJ 290, 2000 PCr.LJ 450, 2015 MLD 1117 and submits that appellant is not previously convicted or has any previous criminal record.

3. On the other hand, Mr. Shahzado Saleem Nahiyoon, learned A.P.G. appearing for the State opposed the application submitting that .12-bore Repeater along with three live cartridges was recovered from his possession. The appellant in contravention of section 3 of the Sindh Arms Act, 2013 was found in possession of the weapon and the punishment provided by the law is fourteen (14) years. He further submits that the trial Court has taken lenient view by awarding punishment of ten (10) years and the same does not fall within the purview of short sentence. He, therefore, opposed the application and prayed for its dismissal.

4. Heard arguments and perused record as well as citations relied upon by the counsel on behalf of the appellant and A.P.G. Sindh.

5. The cases of appellants in all above cited cases were on main appeal and not for suspension of their sentences, however, in instant case, appellant seeks suspension of his sentence in terms of section 426, Cr.P.C., therefore, the law relied upon by the counsel for the appellant is distinguishable and is not relevant to his submissions.

6. It is well settled principle of law, in case of suspension of sentence, only tentative assessment of available evidence and of the judgment is permissible and detailed appraisal of evidence is to be avoided. Admittedly, the scope of section 426, Cr.P.C. is limited than that of sections 496, 497, Cr.P.C. and the sentence awarded to appellant is not short one rather it falls within the ambit of major punishment being ten (10) years. The acquittal of appellant / convict in main case may have direct effect on credibility of prosecution witnesses at the time of hearing of main appeal but for the purpose of deciding application under section 426, Cr.P.C. it is immaterial to consider that aspect of the case as the powers of appellate Court in terms of section 426, Cr.P.C. are not wider than the sections 496 and 497, Cr.P.C. Therefore, I am of considered view, no case for bail or suspension of sentence is made out. Consequently, the application being devoid of its merit was liable to be dismissed. Accordingly it was dismissed by me and these are the reasons for my short order dated 15.08.2015.

7. Since, as reported, the paper book in this appeal has been prepared, the office is directed to fix the appeal for regular hearing according to roster. Miscellaneous Application No. 7701/2015, stands disposed of. JK/L-4/Sindh Application dismissed.