' Ghulam Sarwar, appellant has assailed his conviction passed by Mr. Akhlaque Hussain Larik, Additional Sessions Judge, Sukkur whereby he has been convicted under section 394, P.P.C. And sentenced to suffer four years' R.I. And to pay fine of Rs,5,000 or in default whereof to further undergo three months' S.I.
2. In fact three accused persons namely Raza Muhammad and Rajib along with appellant Ghulam Sarwar faced trial. The learned trial Judge acquitted both the co-accused. However, the appellant was convicted and sentenced as noted above. The charge has been framed under section 17(3) of the Offences Against Property (Enforcement of Hudood) Ordinance, 1979 but offence of Harrabah could not be proved due to lack of required number of Muslim witnesses.
3. According to prosecution, Pamon Mal, complainant was running a shop in the Shahi Bazar, Sukkur. On 17-7-1982 when he returned from his shop at about 8-15 p.m. He was intercepted by two persons who were standing near the stairs of his house. One of them threw chilli powder in his eyes and by pushing him aside snatched the envelope containing Rs,27,437.
4. The case has a bit chequered history because the challan was submitted in the first instance in the Court of Area Magistrate under section 394/34, P.P.C. The appellant along with co-accused was tried by him. On conclusion of the trial, the learned Magistrate convicted Ghulam Sarwar (appellant) under section 394, P.P.C. And sentenced to suffer 2-1/2 years' R.I. With fine of Rs,10,000, in default of payment of fine to undergo further six months' R.I. Appellant Ghulam Sarwar preferred appeal against his conviction in the Court of Session. It was held therein that the offence was covered by the Hudood- Ordinance, therefore, the same was triable only by, the Court of Session.
The appellant along with co-accused was tried by him. As referred to above offence under section 17(3) (Harrabah) could not be constituted, the appellant was convicted under section 394, P.P.C.
And sentenced to four years' R.I. With fine. The appellant considering that the conviction had been recorded under a section of P.P.C. Filed appeal before the High Court of Sindh. The appeal remained pending there for about 12 years. Thereafter vide order, dated 12-3-2004, a learned Judge of Sindh High Court observed that the appeal should have been filed before the Federal Shariat Court. Hence this appeal before this Court.
5. The appellant could not afford to engage' his private counsel, therefore, Miss Aisha Tasneem, Advocate was provided to him at State expenses. The learned counsel in the first instance made an attempt to advance arguments on merits but on a second reflection she came up with the plea that it is a case of an exceptional nature. The occurrence took place on 17-7-1982 i,e, 22 years before. The appellant was arrested on the very day of occurrence and remained in judicial confinement. His trial was firstly conducted by a Magistrate but on appeal filed by the appellant himself praying for his acquittal it was held that the Magistrate could not have assumed jurisdiction, therefore, not only the conviction was illegal but the very assumption of jurisdiction was contrary to law. The trial was held afresh by the learned Additional Sessions Judge who convicted the appellant under section 394, P.P.C. Anthacquitted him of the charge under section 17(3) of the Ordinance. The learned counsel has very emphatically argued that the case may be an unprecedented one where criminal proceedings are pending against an accused person for about 22 years. The appellant at the time of occurrence was a young man of over twenty years. When his statement under section 342, Cr.P.C. Was recorded he gave his age as 36 years and now he is a middle aged man of about 42/43 years. The appellant remained in judicial confinement. Then he was confined in jail as a convict. He filed appeal. Although he was admitted to bail yet his trial was held afresh and he was again convicted by Court of Session. He was again remanded to jail to serve out the sentence. He remained there for quite some time as a convict prisoner but was admitted to bail by the High Court. The matter remained pending for extremely long period.
Thereafter the appeal was brought before this Court. It has, therefore, been argued that the appellant has undergone the pangs and sufferings of investigation and trial for about 22 years which by itself is grave punishment. The appellant at present is confined in jail and the appeal has been filed therefrom. The learned counsel has prayed that the term of imprisonment and confinement in judicial lock-up undergone by the appellant may be treated as sufficient punishment and he may be let off. It is supplemented that during all that period of 22 years there has not been any complaint or report against the appellant for commission of any offence. The prayer made by the counsel in the circumstances of the case is not unreasonable and carries good deal of weight.
6. The learned counsel for the State has not opposed the prayer in principle. He, however, has pointed out that under section 394, P.P.C. The minimum sentence provided is four years' R.I. The sentence cannot be further reduced.
7. In the light of the objection, the question arises as to how much confinement the appellant has suffered. Both the learned counsel sought adjournment in order to consult the relevant record and therefrom to calculate the term of confinement. The office of this Court also called for judicial record from the Magistrate and also from the Court of Session. Relevant record has also been acquired from the Sindh High Court. Unfortunately in spite of best efforts, the term of imprisonment already undergone could not be exactly calculated. Similar difficulty has been faced by the jail authorities. As noted above, the case remained pending in various Courts. The appellant was taken into custody and then released on bail and then again taken into custody so on and so forth. The case pertains to the year 1982. To search out the record and to determine the dates with exactitude could not be determined either by the Court officials or by either of the learned counsel. Therefore, after going through the relevant record and hearing the learned counsel and also taking into consideration extraordinary exceptional circumstances vis-a-vis the inordinate delay, I am of the view that the term of imprisonment already suffered by the appellant should be treated sufficient in the interest of justice. To obtain expeditious justice is a right of every citizen. In the instant case, unfortunately the appellant constantly remained either on bail or confined in jail. Even during bail, the liberty of the individual is curtailed and he remains under bond to present himself whenever he is required by the Court or other competent officer.
8. By taking stock of all the above said facts and circumstances, the appellants' sentence is reduced to the term of imprisonment already undergone by him. The appellant has been fined Rs,5,000 in default whereof to suffer three months' S.I. He is admittedly a destitute, has no sources to pay the fine. He has undergone term of imprisonment which will include, the term of imprisonment awarded in default of payment of fine. The appellant shall, therefore, be released from jail in this case if not required in some other case.