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Criminal Appeal No.456 of 1985, heard on 17th November, 1986.

---S. 392--Delay in filing appeal- -Condonation of--Accused sentenced to 1 years-- Co-accused sentenced to more than 3 years--Accused filing appeal before Sessions Judge which remained pending for pretty long time--Accused, bona fide pursued his appeal before Court of incompetent jurisdiction--Delay condoned in circumstances. --[Sentence].

--S. 392--Sentence, reduction in--Accused thrice sent behind bars and undergoing agony of protracted trial and pendency of appeal for about 19 years--Accused of young age and first offender suffering two months' imprisonment-- Sentence reduced to one already undergone in circumstances.--[Sentence].

S.M. Masud for Appellant.

Malik Amjad Khan for the State.

Date of hearing: 17th November, 1986.

The appellant Muhammad Aslam (20) has been convicted by a learned Magistrate Section 30 Wazirabad on 4th March 1971, under section 392, P.P.C. and has been sentenced to 11 years' R.I. The appellant has challenged his conviction and sentence through the present appeal which has been filed on 24-7-1985. Through a miscellaneous petition, condonation of delay has been sought. It has been submitted in the application for condonation of delay that the appellant on account of misunderstanding filed the appeal originally before the learned Sessions Judge, Gujranwala. The appeal remained pending in the said learned Court for a pretty long time. Ultimately it transpired that through the impugned judgment a co-accused of the appellant was sentenced to R.I exceeding three years i.e. 4 years' R.I. The appeal was, therefore, not competent before the learned Court of Session. It thus appears that the appellant has been bona fidely pursuing his appeal before the Court of incompetent jurisdiction. In this view of the matter, the delay in filing the appeal is condoned and the appeal is admitted for hearing.

2. As for the merits of the case, it has been alleged that on 21-7-1967, the appellant and his co-accused Nasir Hussain deprived the complainant Muhammad Abdullah of a wrist watch valuing Rs.80 and one rupee currency note at the pistol point. The co-accused Nasir Hussain who is not appellant before this Court was armed with pistol while the appellant was armed with Chhuri. The appellant, the co-accused and the complainant took shelter under a Verandah of Ihata of Sheikh Niaz Ahmad at Nazimabad, while it was raining, After stopping of the rain the complainant who had a cycle started for Wazirabad. The appellant and his co-accused requested him to give them the lift. The appellant sat in front of the complainant while the co-accused sat behind on the carrier. On their way to Wazirabad, they asked the complainant to stop the cycle and took out their respective weapons and thus deprived him of the wrist watch and a currency note of the denomination of rupee one. The complainant lodged the report at the police station on the same day. In the F.I.R. the appellant and his co-accused have not been named. Only their descriptions have been given. Subsequently they are alleged to have been apprehended and were identified by the complainant and his witnesses. It has also come on record that Chhuri was recovered at the instance of the appellant. Wrist watch was also recovered from the absconding co-accused to whom the appellant had allegedly passed on the wrist watch.

3. The two witnesses who allegedly saw the appellant and the co-accused Nasir Hussain with the complainant in the Verandah of Ihata of Sheikh Niaz Ahmad did not support the prosecution case at the trial and were declared hostile and subjected to cross-examination. Two other witnesses who allegedly saw the appellant and the co-accused running away after depriving the complainant of his wrist watch and currency note have, of course, supported the prosecution case. Recoveries have also been duly proved."

4. Be as it may, the occurrence in this case took place as far back as July 1967. Thereafter the appellant has thrice been sent behind the bars. Once after he was convicted by the learned trial Magistrate. On the second occasion he was sent to jail when his bail was cancelled due to his absence on a date of hearing and thirdly when it was held that his appeal was not competent before the learned Court of Session. In this manner he has suffered imprisonment in jail for more than two months. He has also undergone the agony of protracted trial and pendency of appeal for about 19 years. The learned trial Magistrate has observed that the appellant was of young age and it was his first offence. He was not a hardened criminal. In these circumstances, it is held that ends of justice would be met if the sentence of the appellant is reduced to what he has already undergone. It is, therefore, ordered accordingly and the appeal is thus partly allowed. The appellant is on, bail and he is discharged of his bail bonds.

S.A. Sentence reduced.

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