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Criminal Miscellaneous No. 3 of 1982 in Criminal Appeal No. 822 of 1979, decided on 16th August, 1982.
--S. 426 (1-A) (b)-Bail, pending appeal-Petitioner already having served over 3 years towards main sentence contention that petitioner having committed a heinous crime of rape upon a minor girl aged 8/9 years, benefit of clause (b) of subsection (1-A) of S. 426, Cr. P. C., could not be given to petitioner-Contention, held, not correct and gravity of offence, a matter to be taken into consideration at time of regular hearing of appeal-Petitioner admitted to bail by giving benefit of clause (b), subsection (I-A) of S. 426, Cr. P. C.
Mahmoodul Haq Thanvi for Petitioner.
C. M. Latif for the State.
Date of hearing:16th August, 1982.
The petitioner was tried under section 376, P. P. C. and convicted by Mr. Saadat Ali Chaudhery, Magistrate Section 30 at Mianwali. He was awarded seven years, R. I. and sentence of whipping (15 stripes).
2. The learned Counsel for the petitioner has submitted that the petitioner has already served three years and two months towards his total sentence and his appeal has as yet not been disposed of nor there is any likelihood of its earlier disposal. According to the learned counsel the case of the petitioner is covered by clause (b), sub-section (I-A) of section 426, Cr. P. C. which entitles the petitioner to be released on bail whose appeal has not been disposed of within a period of one year of his conviction.
3. The learned counsel for the State has opposed this application on the ground that the petitioner was convicted of having committed a heinous crime i. e., rape upon Mst. Jamila aged 8/9 years. According to the learned counsel for the State it is not always that benefit of these clauses as set out under section 426, Cr. P. C. is to be given to the convicts. The Court has the power to refuse to release on bail after recording the reasons. In such like cases the Court shall ordinarily reuse to release a person on bail under section 426, Cr. P. C.
4. For the time being it is sufficient to note that the provision of section 426, Cr. P. C. in such cases entitles a person to bail whose appeal has not been disposed of within a period of one year of his conviction. The petitioner has already served three years and two months towards the main sentence, therefore, there is no reason as forthcoming to disentitle him as to the benefit of clause (b) subsection (I-A) of section 426, Cr. P. C. As to the gravity of the offence pointed out by A the learned counsel for the State the matter will be taken into consideration as it is, at the time when the appeal comes for regular hearing. The petitioner is ordered to be released on bail in the amount of Rs. 15,000 (Rupees fifteen thousand) with one surety in the like amount to the satisfaction of the Assistant Commissioner. Bhakkar.
Bail allowed.
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