P L D 2016 Balochistan 93
Before Muhammad Noor Meskanzai, C.J. and Jamal Khan Mandokhail, J
MUHAMMAD ABDULLAH ---Applicant
Versus
THE STATE ---Respondent
Criminal Bail Applications Nos. 36 and 37 of 2016, decided on 18th April, 2016.
Criminal Procedure Code (V of 1898) ---
----S. 426(1)(2 -B)---Penal Code (XLV of 1860), S.302 ---Anti-Terrorism Act (XXVII of 1997),
Ss.7 & 25(8) ---Qatl-i-amd and act of terrorism ---Suspension of sentence ---Procedure ---Appeal
filed by the accused against conviction by the Trial Court was dismissed by High Court against
which leave to appeal was granted by the Supreme Court ---Contention of accused was that there
was no possibility of the appeal being disposed of in near future by the Supreme Court, he was
entitled for grant of bail ---Validity ---For suspension of sentence granting leave to appeal was one
of the conditions but the sentence could only be suspended if the High Court thought it fit and
discretion still rested with the High Court ---Accused was required to sa tisfy the High Court to
suspend the sentence that appeal could not be disposed of within the stipulated period; judgment
sought to be suspended suffered from a legal error; convict was on bail during the appeal
pending before the High Court and legal bar f or suspension of sentence did not exist ---Merits of
the case could not be touched nor reappraisal of evidence was permitted while deciding the
application under S.426(2 -B), Cr.P.C. ---Provisions of S.426(2 -B), Cr.P.C. did not apply to the
present case ---Convict could not be released on bail during the pendency of appeal as
contemplated by S.25 of Anti -Terrorism Act, 1997 ---Bar of S.25 of Anti -Terrorism Act, 1997
was fully attracted in the present case which being a special law would prevail upon S.426(2 -B),
Cr.P.C. ---Application for suspension of sentence was dismissed in circumstances.
Atta Ullah alias Hasnain alias Hassan v. The State 2009 PCr.LJ 257 distingusihed.
Tahir Ali Baloch and Abdul Razzaq Sher for Applicants.
Mushtaq Ahmed Qazi, A.P.G. fo r Respondents.
Date of hearing: 7th April, 2016.
ORDER
MUHAMMAD NOOR MESKANZAI, C.J. ---By this common order, we intend to
dispose of the above titled applications, which involve same common legal factual questions.
2. Facts of the instant applications are that FIR No.68/2013 under section 302, P.P.C. and
FIR No.69/2013 were registered against the applicant. The cases were tried by the Special Judge,
Anti-Terrorism Court -I, Quetta and eventually, vide judgments dated 23r d February, 2015, the
applicant was convicted and sentenced for life imprisonment and under section 302, P.P.C. read
with section 7 -ATA, and for three years under section 13(e) of the Arms Ordinance. Feeling
aggrieved the applicant preferred Criminal Appea ls (ATA) Nos.39 and 40 of 2015 against the
said judgments before this Court, which were dismissed vide judgment dated 19th October,
2015. The applicant thereafter approached the Hon'ble Supreme Court by way of filing Criminal
Petitions Nos.61 -Q and 62 -Q of 2015. The Hon'ble apex Court, vide order dated 16th February,
2016 granted leave to appeal. Through these applications filed under section 426(2 -B), Cr.P.C.,
the applicant seeks suspension of the sentences passed by the trial Court, upheld by this Court.
3. Learned counsel for the applicant states that since leave to appeal have been granted in
both the cases referred to hereinabove by the Hon'ble apex Court, therefore, the applicant is
entitled for suspension of the sentences and his release on bail. To substantiate his contention, he
placed reliance on an unreported judgment of this Court in Criminal Miscellaneous Application
No.(T)02 of 2015. The learned counsel added that this Court has jurisdiction to suspend the
judgments. According to the learned c ounsel, the applicant is in custody since long and there is
no possibility of the appeals being disposed of in near future, therefore, the applicant is entitled
for the grant of bail.
4. Learned Additional P.G. opposed the contention of the applicant for suspension of the
sentences and maintained that the applicant has committed an offence under Section 302, P.P.C.
r/w Section 7 of ATA, 1997, and has been sentenced for life imprisonment and imprisonment of
three years, respectively, therefore, he does not deserve the concession of bail, by suspension of
his sentences.
5. We have heard learned counsel for the parties and perused the available record. The
question for consideration in these applications is as to whether by granting leave to appeal by
the H on'ble Supreme Court, the conviction and sentence awarded to the applicant can be
suspended as of right? In this regard, Section 426(2 -B) Cr.P.C. is much relevant, which is
reproduced as under:
"Where a High Court is satisfied that a convicted person has been granted special leave to
appeal by the Supreme Court against any sentence which it has imposed or maintained, it
may if it so thinks fit order that pending the appeal the sentence or order appealed against
be suspended, and also, if said person is in confinement, that he be released on bail."
6. Perusal of above provision of law reflects that for the suspension of the sentence granting
leave to appeal is one of the conditions, but the sentence could only be suspended if the High
Court thinks it fit, meaning thereby that discretion still rests with the High Court. In this case, no
doubt, the first requirement to avail the remedy under Section 426(2 -B), Cr.P.C. stands satisfied.
but the applicant is required to satisfy the Court to suspend the sentence s. The provisions of
Section 426(2 -B), Cr.P.C. shall not be read in isolation with the provisions of subsection (1) of
Section 426, Cr.P.C. The convict has to show that during the pendency of appeal before the
Hon'ble Supreme Court, the appeal could not be disposed of within the stipulated period, the
judgment sought to be suspended suffers from a legal error, the convict was on bail during the
appeal pending before the High Court and a legal bar for suspension of the sentence does not
exist. Definitely whi le dealing with an application under Section 426(2 -B), Cr.P.C., the merits of
the case cannot be touched, nor reappraisal of the evidence is permitted. Considering the case of
the applicant with this perspective, it is evident that the requirement of Secti on 426(1), Cr.P.C.
does not attract in this case. The applicant has failed to show a ground for granting relief by
exercising jurisdiction under Section 426(2 -B) Cr.P.C.
7. Moreover, while dealing the matters of bail in the offences that are tried under the Anti
Terrorism Act, 1997, has its own mechanism. A convict cannot be released on bail during the
pendency of the appeal as contemplated by Section 25 subsection (8) of the ATA, 1997, which is
reproduced hereinbelow:
"(8). Pending the appeal in the Hi gh Court shall not release the accused on bail."
So on the same analogy how it would be possible for such a convict to get the sentence
suspended at the strength of Section 426(2 -B), Cr.P.C. after the disposal of appeal on merits by
the High Court. In ou r opinion the bar contained in section 25 subsection (8) of ATA, 1997 fully
attracts in this case and being a special law, it would prevail upon section 426(2 -B), Cr.P.C. in
this regard, we are fortified by the dictum laid down in the judgment titled as At ta Ullah alias
Hasnain alias Hassan v. The State reported in (2009 PCr.LJ (Lahore) 257); (relevant at page -
260), wherein it was observed as under:
"8. This Court pending the appeal of a convict can suspend the sentence under section
426, Cr.P.C. but in case tried by Anti -Terrorism Court the said powers is not available in
view of bar contained in section 25(8) of the Anti -Terrorism Act 1997. When a Court
cannot exercise a power of releasing the accused on bail during the pendency of appeal
before it, in our view the said jurisdiction cannot be exercised even after the decision of
appeal by invoking provisions of section 426(2 -B), Cr.P.C."
As far as the unreported judgment of this Court referred by the learned counsel is
concerned, of course there is no cavil with the proposition laid down therein, but the facts of the
cases are altogether different from the facts of the case in hand. It is important to mention here
that in the referred case, the conviction was not under the provisions of the ATA. In tha t case the
High Court reduced the sentence by altering the charge from 302 -b, P.P.C. to 302 -c, P.P.C.
Furthermore, in that case, the Hon'ble apex Court was pleased to make some observations on
merits. while granting leave to appeal. Hence, the referred cas e is of no help to the applicant.
For the foregoing reasons, we see no merits in the instant applications, which are
dismissed.
ZC/29/Bal. Bail refused.This judgment is reproduced from a publicly available source for informational purposes and does not constitute legal advice. If you believe this listing contains an error,
let us know.