2020 P Cr (PLP)

AQEEL AHMED ABBASI, J.

Learned counsel for the appellant submits that instant appeal was admitted to regular hearing vide order dated 08.05.2015 in the following terms:- "Through this Appeal, appellant Mohammad Rashid Anwar has challenged the judgment dated 16.4.2015 passed by learned Presiding Officer. Special Court (Offences in Banks) Sindh at Karachi, in Case No. 12 of 2012 (FIR No.6/2012 registered at PS FIA CBC, Karachi, under sections 420, 468, 471, P.P.C.) whereby the appellant was convicted under sections 420, 468 and 471, P.P.C. and sentenced to suffer RI for seven years on each count and pay fine of Rs.500,000/ each and in case default in payment of fine to suffer further RI for one year on each count the trial Court while extending the benefit of section 382-B, Cr.P.C. ordered all the sentences to run concurrently. Appeal being statutory right is admitted to regular hearing. Call for R&P and prepare paper book. Issue notice to Deputy Attorney General." However, per learned counsel, thereafter the appellant has moved several applications for urgent hearing of application under section 426, Cr.P.C. for release of the appellant by suspending the sentence during pendency of the appeal. Per learned counsel, the case diary of this Court reflects that the counsel for the appellant has always remained vigilant to proceed with the matter as well as the application under section 426, Cr.P.C. filed in the instant appeal, however, on account of paucity of time and number of cases being regularly fixed in the Court, the case of the appellant could not proceed nor the application under section 426, Cr.P.C. has been decided. Learned counsel for the appellant submits that impugned judgment suffers from various errors and illegalities as the learned trial Court has failed to appreciate that the appellant is neither the author nor has been instrumental in preparation of the alleged fake pay order which in fact was handed over to appellant by a third party and which was in fact deposited in the account of the appellant in good faith subject to clearance by the bank. It has been further argued that no inquiry in this regard has been made nor any bank official has been impleaded as accused, whereas, the appellant has been convicted for offence under sections 420, 468, 471, P.P.C. However, according to learned counsel, there is no possibility that instant appeal may be heard and decided at an early date, hence prays that the application under section 426, Cr.P.C. may be decided on merits as well as on the statutory ground, as according to learned counsel for the appellant, more than one year has already lapsed from admission of this appeal, which has not been taken up for hearing. Learned counsel for the appellant further submits that the appellant was on bail during trial, whereas, the appellant has no previous criminal record and he is a businessman, who has been convicted by the learned trial Court on the basis of misreading and non-reading of the evidence. In support of his contention, learned counsel for the appellant has placed reliance in the following un-reported orders passed by this Court:- i) Shamsul Haq Siddiqui v. The State (Criminal Appeal No.194/2012) ii) Naveedul Haq Khan v. The State (Criminal Appeal No.145/2012) iii) Salamullah Qureshi v. The State (Criminal Appeal No.315/2012) iv) Abdul Zaheer v. The State and another (Criminal Appeal No.134/2011) v) Muhammad Sikandar v. The State (Criminal Appeal No.485/2011) vi) Muhammad Moinuddin Maklai v. The State (Criminal Appeal No.327/2010) vii) Syed Faraz Hussain v. The State (Criminal Appeal No. 02/2010)

2. Conversely, learned Standing Counsel submits that since the appellant has not moved separate application under section 426, Cr.P.C. on statutory ground, therefore, such ground is not available to the appellant. It has been further submitted that some of the case diaries reflect that the matter was adjourned by consent, therefore, it cannot be said that delay in proceeding of the appeal can be attributed to the prosecution. However, while confronted with factual and legal position as argued by the learned counsel for the appellant relating to the merits of the case, learned Standing Counsel could not satisfactory controvert to such position nor could assist the Court as to whether in the absence of any mens rea duly established by the prosecution through evidence, the appellant was somehow instrumental in preparation of such fake pay order. The case of the prosecution could not be termed as free from doubt under the circumstances as noted above. We have also observed that after having filed instant appeal, the appellant has remained vigilant and has been making efforts to proceed with the appeal and the application under section 426, Cr.P.C. by filing several urgent applications. However, case diaries reflect that the matter was mostly adjourned by the Court on account of paucity of time, though there are few dates, when instant matter was adjourned by consent. However, there is no case diary, which may reflect that adjournment was sought by the counsel for the appellant. It has also come on record that during trial, the appellant was on bail, however, after his conviction since 09.04.2015, he is behind the bars, whereas, instant matter not proceed on account of paucity of time, in view of regular fixation of a large number of cases before the criminal bench of this Court. There is no likelihood that instant appeal may be taken up and decided at an early date as we are confronted with large number of urgent cases on daily basis. The objection of the learned Standing Counsel that no separate application on statutory ground has been filed is misconceived, as during pendency of the application under section 426, Cr.P.C. admittedly, one year has been lapsed, whereas, we are in possession of the case diaries of this Court and no further material is required, while considering the statutory ground of delay, as this Court has to examine as to whether the delay is on the part of the appellant or the prosecution. Prima facie it appears that the delay in hearing of instant appeal or the application as referred to hereinabove cannot be attributed to the appellant, who has filed number of urgent applications in the instant case. We are of the opinion that the appellant has made out a case for his release on bail by suspending his sentence awarded by learned trial Court during pendency of the instant appeal.

3. Accordingly. we would admit the appellant on bail and order for his release by suspending his sentence awarded by learned trial Court, during pendency of the instant appeal, subject to his furnishing solvent surety in the sum of Rs.500,000/- (Rupees Five Lac only) and P.R. Bond in the like amount to the satisfaction of the Nazir of this Court.

4. Office is directed to fix the appeal after summer vacation as per roster. SA/M-30/Sindh Sentence suspended.