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Criminal Appeal No. 70 in Criminal Petition for Special Leave to Appeal No. 28‑R of 1985, heard on 13th October, 1985.

(Against the order of the Peshawar High Court, dated 31‑3‑1985 passed in Criminal Miscellaneous No. 15 of 1985).

‑‑Ss. 426 & 497/498‑‑Penal Code (XLV of 1860), 5.302/307‑‑Sentence‑ Minimum sentence to be awarded to accused under S.302, Penal Code, imprisonment for life‑‑Trial Court while awarding five years' imprisonment to accused completely omitting to notice that sentence awarded was in contravention of provisions of law‑‑Trial Court, held, erred in granting lesser sentence‑‑Order of High Court suspending sentence of accused under S.426, Cr.P.C. set aside and bail granted to accused cancelled.

'Abdul Hakeem Khan, Advocate Supreme Court with Ch. Akhtar Ali, Advocate‑on‑Record for Petitioner.

Zafar Muhammad, Advocate Supreme Court and M. Qasim Imam, Advocate‑on‑Record (absent) for Respondents Nos. 1 to 8.

Bashirullah Khan, Asstt. A.‑G. for N.W.‑F.P.

Date of hearing: 13th October, 1985.

‑‑Muhammad Khurshid petitioner seeks leave to appeal against the order of the Peshawar High. Court, dated 31‑3‑1985, whereby the respondents were granted bail under section 426, Cr. P.C.

2. The respondents alongwith another were tried for offences under sections 302/307/427/447/148 and 149, P.P.C., inter alia, for the murder of Mukhtar Ahmad and firing on some others. The learned trial Court (Sessions Judge Bannu) found them guilty and convicted them as follows:‑

(1) Under section 302, P.P.C. death sentence to Abdul Razzaq.

(2) Remaining accused i.e. respondents Nos. 2 to 8 under sections 302, P.P.C. and 307 P.P.C. 5 years R.I. and a fine of Rs.2,000 each or in default to undergo further 6 months R.I. under section 427, P.P.C. 2 years R.1. each; under section 148 P.P.C. 2 years R.I. each; and under section 447, P.P.C. 3 months R.I. each.

3. All of them filed appeal before the High Court. The respondents also filed an application under section 426, Cr.P.C. for suspension of their sentences. The learned High Court vide the impugned order granted bail.

4. The learned counsel for the petitioner has argued firstly that since the learned trial Court also convicted the respondents under section 302, P.P.C., the only sentence that could have been awarded to them was either death or imprisonment for life. But the learned trial Court has erred in awarding them minor sentence of 5 years each, which is wholly contrary to law. He submitted secondly that the learned High Court was influenced, while releasing the respondents on bail, by the fact that they were sentenced to only to 5 years R.I., and has completely omitted to notice that this sentence was in contravention of the provisions of section 302, P.P.C. under which they had been convicted. The learned counsel submitted further that the High Court while granting bail to the respondents appears to have been under the impression that the application before the learned Court was one under section 497, Cr.P.C. which is applicable in the case of accused persons have not yet been tried or convicted, and not under section 426 Cr.P.C. which applies to convicted accused. For this contention, the learned counsel for the petitioner relied on the following observation in the impugned order:‑

".. . Their case, for purpose of bail is argueable because sentence awarded to them is not covered by the prohibitory clause of section 497, Cr.P.C."

5. We have also heard the learned counsel for the respondents, who is present in response to the notice issued on the last date of hearing, as well as the learned A.A.‑G. We, therefore, convert this petition into appeal and proceed to dispose it of as such.

6. The learned A.A.‑G. supported the prayer for cancellation of bail.

7. The learned counsel for the respondents, however, submitted that the respondents had rightly been granted bail in view of the fact that the sentences awarded to them under section 302/307, P.P.C. were short i.e. 5 years' R.I. each. He could not, however controvert the contentions raised by the petitioners learned counsel, that the minimum sentence to' be awarded by the trial Court under section 302, P.P.C. is imprisonment for life and that the learned trial Court had erred in awarding them a lesser sentences of 5 years R.I. each under that section.

Having given our anxious consideration to the matter we feel there is considerable weight in the contentions raised by the petitioners' counsel. As such we allow the appeal, set aside the impugned order of the High Court and cancel the bail granted to the respondents by the High Court.

M. Y. H. Bail cancelled.

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