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Criminal Appeal No.54 of 1984, decided on 29th October, 1986.
‑‑‑S. 382‑B‑‑Sentence, reckoning of‑‑Accused remained in custody for more than 3 years as undertrial prisoner‑‑Accused having undergone maximum period of punishment awarded to him by Trial Court given concession of S. 382‑B, Cr.P.C. and released from custody, in circumstance.
Ryas Khan for Appellants.
G . R . Warsi for the State.
Date of hearing: 29th October, 1986.
This judgment would dispose of the above two appeals filed by the appellants again the conviction recorded by the Vth Additional Sessions Judge, Karachi. The prosecution case in brief is that on 9‑9‑1968 complainant Ghulam Rasool lodged a report at the police station that he was student of Class X in Government Boys Secondary School, Kotwal Building. After the school at about 12‑30 p.m. when he reached the gate of Civil Hospital he saw a crowd of school boys near Princes Street. He saw that Muhammad Ayaz Javaid, Abdul Waheed, Mumtaz, Abdul Khallq and Ghulam Haider were present. They were surrounded by Fateh Muhammad and his three companions. Fateh Muhammad had caught hold of the Collar of Muhammad Ayaz, one of the boys was holding stick and the rest of the boys had surrounded Abdul Waheed, Mumtaz, Abdul Khaliq and Ghulam Haider. He snatched away the stick from the boy who was holding the sticks. Fateh Muhammad immediately took out a knife and inflicted two knife blows one on thigh and one on the chest. Muhammad Ayaz fell on the ground and started bleeding. Fateh Muhammad and his companions ran away, from the scene of offence.
2. The committal Court proceeded with the case but after the committal proceedings were abolished, the case was sent to the Court of Sessions.
3. At the trial the prosecution examined Ghlulam Rasool, Ghulam Hyder, Abdul Khaliq, Mumtaz Ali Naqi Hadi and Abdul Waheed. The death of the deceased is not denied and it has been established through the ocular and medical evidence. The accused in their statements under section 342, Cr.P.C. denied the allegations and stated that the witnesses are interested and they have been implicated due to the election rivalry. According to the witnesses who were present at the time of incident and examined by the trial Court it is clear that no incriminating evidence is available against appellants Muhammad Vakil and Mirajuddin. They were only standing at the Wardat and they have been implicated as they belonged to the party of accused Fateh Muhammad. Learned counsel appearing on behalf of the State has also admitted this fact. The conviction of these appellants is based on no evidence. Their appeal is accepted and the conviction and sentences recorded against them are set aside. They are on bail and their bail bonds are discharged.
4. As regards the appellant Fateh Muhammad, all the witnesses who were present at the Wardat have fully implicated the appellant and the learned counsel for the appellant has not challenged his conviction under section 302, P.P.C. The appellant at the time of commission of offence was less than 16 years and, therefore, after convicting the appellant the learned Sessions Judge referred his case under section 68(2) of the Sind Children Act, 1955 to the Provincial Government. The Provincial Government passed an order on 3‑12‑1985 whereby the appellant Fateh Muhammad was ordered to be detained for three years in Central Prison Karachi.
Learned counsel for the appellant has stated that the date of incident is 9‑9‑1968 and the appellant was arrested on the same day. He was granted bail on 18‑11‑1971, therefore, he remained in custody as undertrial prisoner for about 3 years, two months and 18 days. Section 24 of the Sind Children Act provides that procedure to be followed in trial of cases under the Act shall be in accordance with the provisions of the Code.
As the appellant remained in custody for more than three years as an undertrial prisoner, therefore, I give him the concession of section 382, Cr.P.C. as he has undergone the maximum period of punishment awarded to him by the trial Court. The appellant is on bail. His bail bonds are discharged.
The appeals stand disposed of in the above terms.
S.G.D.(5112/K) Order accordingly.
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