2017 PLP 323 (YLRN)

SHAHNAWAZ TARIQ, J.

Through captioned application under section 426, Cr.P.C. appellants impugned judgment dated 11.03.2016, passed by learned I-Additional Sessions Judge, Karachi West, whereby appellants were convicted.

2. At the very outset, learned counsel for the appellant does not press instant appeal for appellant No.3 Sabit son of Haji Azmat Khan, as he was convicted for life imprisonment under section 302(b), P.P.C. hence instant appeal to the extent of appellant No.3 stands dismissed as not pressed.

3. Learned counsel for appellants Faulad Khan and Zahid Khan contended that they both have been convicted and sentenced for five years and out of which they have already been served out their major portion of sentence, but on merits, they have a good case, as various necessary points have been ignored by the learned trial Court. Learned counsel further contended that occasion of Eid ul Fitar is after 3 weeks and there would be an announcement of remission for the prisoners by the Government of Sindh and the probability is that appellants would be released on completion of their sentence but they want the decision of instant appeal on merits. Learned counsel lastly emphasized that appellants may be released on bail till disposal of instant appeal and office may be directed to fix main appeal for regular hearing.

4. Learned APG has opposed the plea of bail and contended that sentence awarded to appellants will be completed after 3 weeks in view of remission to be announced by the Government and they will be released instantly due to completion of their entire sentence; that they had participated in the commission of murder of deceased Aurangzeb, hence they are not entitled for concession of bail.

5. Necessary facts spelt out from instant appeal are that appellants Sabit, Faulad Khan and Zahid Khan caused iron rod blows to Gulab and on the head of Aurangzeb who went unconscious and during treatment, he succumbed to his injuries.

6. Heard learned counsel for the parties and perused the record, which emanates that appellants Nos.1 and 2 have been convicted and sentenced under section 302(c), P.P.C. by the Court of learned I-Additional Sessions Judge, Karachi West for R.I. 5 years, however, benefit under section 382 (b) Cr.P.C. was also extended to them. Perusal of jail roll reflects that both appellants have already served out the major portion of their sentence by completing the period of 4 years. 8 months and 6 days and their behavior during the period of their detention remained satisfactorily. Admittedly, Holly Month of Ramzan is going on and per continuous practice of Government of Sindh, remissions to the convicts would be announced by the Government on the occasion of Eid ul Fitar and probably both appellants would be released from Prison due to completion of their entire period of sentence. It is significant to mention that to wash the stigma of conviction, appellants are anxious to proceed with the main appeal on its merits. Per counsel for appellant certain necessary and essential aspects of the main session case have not been adjudged and decided prudently by the learned trial Court, while on merits appellants have an arguable case. Indeed, any convict can be released under section 426 Cr.P.C. even one day prior to the completion of his entire sentence if he is entitled for release on bail strictly on the merits and such request could not be defeated on the plea that appellant would be released from Prison on completion of their entire sentence shortly.

7. Considering the above circumstances and quantum of sentence for R.I. 5 years, which falls within the ambit of short sentence, consequently, the operation of impugned judgment dated 11.03.2016 is suspended and appellants are admitted to post arrest bail on furnishing solvent surety in the sum of Rs.100,000/- each and P.R Bond in the like amount to the satisfaction of Nazir of this Court. The Superintendent of concerned Prison is directed to release appellants Faulad Khan and Zahid Khan forthwith, if they are no more required in any other case. Office is directed to prepare the paper book at earliest and fix instant appeal for regular hearing as per roster. To come up on 12.08.2016. WA/F-12/Sindh Order accordingly.