MUHAMMAD SHAHBAZ S/O MUHAMMAD MERAJ (Appellant) VS THE STATE (Respondent)

lZo t ('t,,1{'l'llrl('rVl'l1Ol;'l'l It1 lll(ill ('OIil{'l'OIr SIM)l [, l(r\l(r\('lll Crl Altltcal NO. 147 of 2021 Crl Jail At)t)o{rl NO. 276 of 2021

* Srtlcnrnn & nrrotlrar

Tlrc Statc

I il(;ll t olr slNI)t I

( t)l ttttttsititttt ol'll tt'lr. .t. /i.

Mr, Justicc Multatlmad l(arinr l(lran Agha

l)rrtr ol'hr.ririrrg: 25-09-20?.4

l)ctitL:tl tlr : 03- l0-2024

.lttclgurcnt u1;llxtvccl iirr l{cprlrtirrg Ye;

/\,fl\- C lr It'l'l F I C A"l' 11.

Ccrtillctl that {.hc judgurcnt':'/OLclcl i.s lrasctl uporl ot'etruuciatcs a principlc ol'lirrr 'r'lriccides a question ol lar,r, u,liich is o[ first irrtltressiouiclistinguishcsi. Ovcr.-rurlcs., rcvcrscs/cxlllairrs n 1:r'cviorrs clccision.

{' Stril<e out u'hichcvcr is rrot applicable.

NOTII: - (i) Tltis slil: is ort11, to lrc uscil *'lien sonte action is tg Lie taltel

(ii)l{'thc slilt is usctl" thc l{cirrler must attacir it to the top <rt"tlrr. t-irsr Ilage oJ- tlie .iudrurcnt.

(iii)Itentlcr tuust nsli thc Jurlge rvriting the Juclgurcut n'[icrhcr rlr,-: .luclqnicnt is apllroved fol rcltorting.

(iv)'l"lrosc tlircctiorts u,lticlt itrc riot to bc usecl shoulcl ire tlclcrrti.

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+ I,lll '.1 l'l f I t) (Ii't :,.{0. ..Q.'1...fi Pr.J. I

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IN THH HIGI{ COURT OF SINDH

AT KARACHI

/qy Criminal Appeal No. - /2021 .

Suleman S/CI Bundo Khan, fiIuslim, Adult, R/O Karachi at 100 Quarters, Korangi Road, Karachi Appellant.

VERSUS

The State .. ResPondent.

F.l.R. No.420/2018 u/s 302/34 PPC.

RfuV 397 PPC.

P.S. Zaman Town lr

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APPEAL UNDER SECTION 410 OF

CR!MINAI.. PROCEDURE CODE

Being aggrieved and clissatisfied with the impugned judgment dated 02.03.2021, passed by the llnd Additional Session Judge tll itt I Karachi East in S.C. No.713/201S, the appellants of following facts and grounds:-

Certified copy of the impugned iudgment is enclosed herewith and marlted as Annexure "A"'

Contd ., . Plz'

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IH TH E HIGH COU RT OF

SIilPH AT HARACHI.

Crl. olnil A;11:cnl N(t. or ?02 r, -t

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Itluhamrnnd Blrnhhnz frtu Son of Muhnnrmael Merqf Mrrslint, ntlttlt, llrnserrtlY rnrrfirterl irt Cetttrnl llrisotr, Iinfaclti"., .. . r. . . ... r.. t " " I ] { " ' r ' ! " r r ' r + I r ' ' .Appcllant in person, Vcrsus

Tlte state. Respondent.

Seseions Case NO.7 l2 lXAlg.

FIR No.420lzatB Sectione. 397 I 3O2l 34PPC.

PS. Zaman Town, Karachi"

APPEAL UNDER SECTION 41O CR.P C.

Honourable Sir, tseing aggrieved and dis-satislied tqith impugned judgement dated 02.03.2021, passed hy Mr.

Javed lqbal, Learned lrth Addltlonal Sesslons Judge Harachfl, East, {MODEL CRIMIHAL TRIAL COURT EXTEHSTOHI in Sessions Cnse numtrer nrentionecl above re: Tlre Stnte Vs. Mulrnmrnnrl Slrnhblre, beirifl orttconre sf flfi numbcr mcntiorrrrl fllrnve , lrolice Stntion Znrnm f

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Town, Karuclti, ttttclrr rluctlnrrs 30? , 3g7r 3.1 [r-F.C.

Wlrrrehy corrvictirrl4 nrul s*rrterrcing the Appellant/ accuserl hy awnrclirrg him s*ntenccs ns rrncler:-

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THE HIGH URT OF DH AT I(ARA CHT

Ilr-qisflrtl JlIr. Jrrstlcs fiIoltummarl ffartm l(hcn Agha

cR, APPnqL_NO.147 O[' 2q?1.

Appr,11nt'r1, sulumau s/tl Llundrl Klran thrcrul5h Mr. Qadir I-lttssain Ithan, Ms, Shchla Anium, ancl Ar:rnnullah l(akar, Aclvocates'

Rcspqr11dc111; The State through Mr, Muhammad lqbat Awan, Ac{dl. Prosecutor Genera[, Sindh

CRL. NO. 276 0F 207-1

Appellant: Mulrarnmacl Shahbaz sf o Muhammad Meraj through Mr. MulTammad Hanif Noonari, Advocate.

Responderrt: The State tluough fulr. Muhammad lqbal Awar"r, Addl. Prosecutor General, Sindli

Date of Flearing: 25.09.20?4

Date of Aunor:ucement: 03.10.2024

IUDGMENT

By tl^ris corrmon judgment, I intend to dispose of both the Cr. Appeal anrl Cr. jail Appeal filecl by Appellants Suleman and Muhammad Shahbaz respectively, wlro were convicted and sentenced by tl-re Vth Aciditional Sessiot"ts Judge-East/Model Crimirral Trial Court (Extension) I(arachi vide lurlgment dated 02,ffi.2rJ21 as uncier:-

Iroi' thc offcuce puuislrable undel scctiorr 3CI2/34 (t:) acctrsecl persons Sulernan soll of Bunr,lo l(han and Muhammad Shahbaz sorl of Ifiuharnrracl Mcraj to suffer R.l. Imprisonurent for life as Tnzrr (each) ancl pay Its.5,0fi,000/- (Rupees Fivc Lacs) each as conllrensation unrier I Section 544-A Cr.P.C. to the legal heirs of rleceased Shahitl Khan, I;or tlre offence punlshablc undcr scctiotr 397 /34 accusetl persons Sulenrarr sCIr1 of Bunclo Khan antl Muharnmari Shahbaz son of Muhamrnacl Meraj to suffer R.I. 7 years (Seven years) each. Benefit of Section 382-B Cr.P.C was trlstl extenclecl to the accuserl pgrsollfi. Above sentences; wcre orrlerei-1 to rutl cOIlCurrentiy.

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2.Thc brief facts of the ca$c nB per FIR lodged by complainant Mst. Samina are that on 19.08.2018 her husbanrl Shahid Khan along with his son Sumair, rirling on rrtotorcyck' wcttt to purchflse Brir.$$ for cow, at about 1030 hours, her son infnrnrt'rl thc coruplninnrtt on mnbilc phonc that her husband had recelved Lrulk-'l injtrrl, c{rurictl try urrkrrr}wt't culprits. Later on, the complainant came to knmv tlrnt nt 6ltous llnk ltrtarl, opposite t(iwaj Marriage FIall, Korangi No.S'A t1'p culprits ritlirrtri ott rtrotorcycle firetl uporl her husband while commissitln of 1.11[:[rgr1,, resrrltnrttly he reccived tlullct injuries and was shifted to Jinnah Haspital rt,hr.rc hc succnurl:etl to his injuries. Hence the aforesaid FIR was lodged against the trvo urrkttowtl persons,

3.After cornpletion of investigation I.0. submitted charge sheet against the accused persons to which tl"re appellants plead not guilty and claimed trial.

4.TIte prosecution iu order to prove its case examined 9 witnesses and exhibitecl various documents and other items. The statement of accused was recordecl under Section 342 Cr.P,C in which they denied all the allegations leveled agair"tst them and claimed false implication.

5.After hearing the parties and appreciating the evidence on record the hial court convicted the appellants and sentenced them as stated earlier in this judgment and hence, the appellants have filed these appeals agalnst their convictions and sentences.

6.The facts of the case as well as evidence procluced before the trial court find an elaborate mention in the impugned iuclgment passer{ b1' the trial court and, therefore, tl're sarr,te may rrot be reproducecl here so as to avoir{ r{uplication and unncccssary repetition.

7.l-earned counsel for the appellants have conteuderl that the appellants are completcly innocent arrcl lrave bccn falsely implicntetl in this case by the police in order to show their cfficicncy wlrich lcat{ to thc FIR being lotlgerl r,vitl'r an

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unexplained dclay of 4 rlays; tllilt thc solc cye witrlesscs evidence cannot be safely relied upon cspccially in terms of correctly identifying the appellants as the persons wlro carried out the robbery and rnurder nnd even the appellant's identification parade was legally clefective; that no recovery was made from the appellants arrd that for any or all of the above rea$on.q the appellants shoulcl be acquittecl of the charge hy being exterrded thp ber"refit of the doubt. In support of

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their contentious they has placed reliance on the case$ of Abdul Ghafoor V The State (2013 P Cr'. I-] 1185 anrl Mst. Robina V The State (2{I22YLR 454).

I. On tlre rrthcr lrnurl lcarrrctt AI'C nppearing on behalf of the State has fully supForturl thr: iurpullrcd jurllirnenl anrl conlenderl that the appeal is without rurrrit nrrtl slrnuhl L:c tlisnrisscd. I-lc has rclied on the evic{cnce on record and particulnr.ll, ,r,', the cvirlcncc of the cyc witness to thc robbery and murder' g. I hnve hcard the argurnents of the learned counsel for the parties, Eone tlrougS tle cutire evidence which has lreen read out by the appellant's counsel, arrtl the impugnecl juclgrnent witlr their able assistance and have considered the rekrvant law including the case law cited aL the bar.

10.At the outset based on the prosecution eviclence, especially the meclical €rrir;1*,'r.u I find that tl're prosecution has proved beyond a reasonable doubt that arr 19.08.2018 'at about 2230 hours Shahid Khan (the deceased) was shot and rnurderert by firearm. In fact this is an admitted position by learned counsel on behalf of the appellants and as such is not in dispute.

11.The only question Ieft before me therefore i.s who shot and murdered the deceased at the said time, date and location and whether the deceased rvas robbed by such person(s)?

12.After rny reassessment of tlie evidence I {ind that the prosecution has NOT proved beyond a reasonable doubt the charge against the appellants far which they were convicted keeping in view that each criminal case is haseri on its own particular facts, circurnstances and eviclence for the following reasons.

(a)There was a delay on 4 days in lodgirrg the FIR by the wife of the deceased. I find that such delay lras not been fully explained especiallv as her son who is named in the FIR who u'as u,ith tl-re rleceasecl at the tiine whcn lre was shot was in a bettel position to lor{ge the FiR imnrediately yct he failed to clo so for" rcasons best knor,vu to himself. I find that thls castcs somc suspicion on thc prosecutions cnse btrt not enough to be fatal to the prnsecution casc based on the partictrlar facts and circum.starrces of the case; namely that the lllR was lorlgctl against unknolvn pelsons anr-l tlrere was no attcmpt to falsely irnplicate anyone hor,vever such clelay puts me on caution.

(b)I finrl tlrat the prosecution's case rests ahnost exclusively on the evidence of the sole eye witness to the inciderrt and his ability to correctiy identify the appellants rvho allegedly came on a motor bike and attemptec-l to rob his father and then shot dead his fatirer on his resistance whose evidence I slrall consider in detail belon';,,

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-r._ (i) Eye witness PW 5 Sameer Khan. He is the son of the deceased' Accor,ling to his evirlence on 19.08.2018 at about 10.30pm he and the rleceaic.l went to purclrase cattle food on his rnotor bike' When tlrcy rcacltctl ncflr Rivni Shntli ['lall situatc at Ghous park road two nrtrlrrrs cnlltr] orr n rnotur ltike anr,l intcrccpted them and tried to rob tltertr. Orr ltis fnlltcr's t'tsistancc onc of the accused fired on his frttltr-,t' rvlrich firc shot hit tris fathcr in the face who fell to the his llrutrrrtl rvlrilst [roth tlrc rubbcrs c.scapctl, FIe then phoned irrotlrtr nntl tnlktl nn nrnbulance nnrl with the help of the pecrple r.r,lttr rt,nchetl tlre plncc of thc incitlcnt he took his father by nrtttrulnttcc tu JI)MC whete his fatfter lvas pronounced cleatl' lle [urthcr statcrl in his cvirlcrrce that lre can iclentify the accusetl pr:rsolls lt,ltettever shown to him.

It r*as a rright tirne iuciclent and there is no evidence of their being wifness clid any light niailable at the scene of the inciclent. The eye of either of not krrorv the appellants fronr before. He gave no hulia the appellants in'tris s.161 Cr.PC statement which in any event was fatal to the giveri S aoy, after the incident which delay itself is often her FIR 4 days later prosecution case. His mother when she lodged not state that her son / Lrased on the hearsay evidence of her son does he saw thern again' tolcl her that he.orid recognize the assailants if The ir-rcident woulcl have occurred quickly in the heat of the got a look af rnornent and it is un-likely that the eye wihress -good the assailarrts over this ihort period of time especially as it was likelv dark and he did not know them from before and he most would have been in a state of panic' the In cross examination the eye wihress states as under regart{ing icierrtification of the assailants;

"It is correct that I narrated the entire facts rvhich happenecl rnrith me and my father to police officer who was recorcling my staternent u/s.161 Cr.p.C. on 29.08.2018. It is correct that as per the contents of mashirrtama of site inspection it is mentioned that I could not see the accttsed persons at the time of incident." (bolcl adcled)

Furtltcrtnorc, PW 2 Yousif AIi who the eye rvitttes-c took to the crimc sccnc states as uncler tlur"ing cl'oss exanrinAtion;

'[[ is corrcct that r:rr pointation o[ the sou of tleceasetl I visitccl thc placu of incitlcnt and drarvrr suctr picttrrcs' It is colrcct thnt thc son of dcccasctl is nrashir of nrcnrcl o[ sitt' irt.tpcctir.rn lix.4l I]. It is correct that it is nrentioned in the ntaaltirnarna thnl duu to dnrkncss nraslrir who was sotr of I deccaacrl coulcl noI iclcntify thc acctrsed and also states snnre facls iu statrnrerrt ty's.161 Cr.Il.C. (bold added) (.iL,e *tg. ,1 urlf I It is thercfore apparent that the . was not in n position to correctly identify the assailants evel if n later identification parade was held especially as hc did not even give any hrrlia of the assailants which appears now to be because he did not sec thenr due to the darkness of night.,

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fr In this respect reliance is placecl on the case of ]aved Khan V State (2017 SCMR 524) concerning the necessity for an early hulia/ description of an accused by an eye witness in his 5.161 Cr.PC statement before an iclentification parade and the need to \.-.. strictly follow the rules governing identification parades where it was held as under at P.528 to 530:

"7, We hnue lrcnrd llrc lennted caunsel nnd gone through the record. 'flte proceedings nnd the ;l.osrrcrufforr cnsr rrrsfs on tlte positiue idtntificotion Forrrrsic Sr:frrrr:e Lnbarnlory repurt wlich ststes thnt tlrc bullet cnsing strtt ftr il (rrrlrirlr trrns stnted lo lmrte been picked up from tlrc crinte scene) runs y'r.rrf frottt tlrc snnre pislol (ruhich u,ns recouered from Rnees Klmn in rrrrrrflrer mse). We tlrcrefore prlceed ta consider botlr these nspects of the rrns{,. As rcgards the identificatiort proceedings and their context tlrcre is n loug Iirc of precedents stating that identificatian proceerlirrgs LIrIst be carcftilIy conducted. ln Rnrnznn u Empe.ror (A[R 1929 Sirl 149) Perceunl, lC, ruriting for the lttdictnl Conurtissioner's Court (tlrc yrccursor of tlrc High Court of Sindll held thst, "The recogttition af n dscoit ar otlrcr offender lry n persott who has not preuiausly seen Iritrr is, I think, a fonn of eaidence, wltich hns always to be taken with a considerable anrcunt of cautian, because mistskes fire alwnys possihle in such cases" (pnge"l"49, cohtmn 2). ln AIim u, State (PtD 1967 SC 307) Cornelius CJ, ruln hnd deltuered tlrc judgment of this Court, ruith regnrd to the runtter of identificntiorr pnrndes held, timt, "Their [witnesses] opportunities far obseruatiott of the uilprit taere extremely linited, They had fleuer seen him before. They had piilced out tlrc assailarfi at the identification parudes, lnfi there is a cle,ar possibility arising otft of their statenrcnts that they r.zere assisted to do so lty being shor.un tlre accused pcrsofl enrlier" (pnge 313EJ. In Lnl Pnsnnda,,State (PLD 1981SC 1 42) Dornb Pntel !, wlrc hnd deliue.red tlrc judgnwnt af tlis Court, held that, if a witness had not giaen a descriptiort of the assailsnt in his stntemeut to the Polict turd identificatiott toolc place four or fiue montlrc nftr, tlrc nurder it tttoultl, "refrct against the entire prosecutiott cfise" (pnge 145C). Itt {t trrare recent judgnrcnt af this Court, Imrnn Aslrnf a. Stnte (2001 SCMR 424), ruhich utns mtthared by lftikhnr Mtfunnnnnd Chnudlrry l, this Court Iteld thnt, it ntust be ensured that the identifying ruihtesses rrrrsf "not see the accused after tlrc contndssiott af the crime f"iil tlu: identificatiotr parade is held inmredintely nfter tlrc arresf of the acutsed persafis as eatly as possible" (pnge 485P).

8.The Conrylafuauf (PW-s) had tot meutioned rury teatures of tke sssailsttts eitlrcr in f/re FIR or in lrfs stntement recorded rutder sectiott 16'1., CnP.C tlrcretorc lhere rons fio benclnnnrk ngnursf which to tcst ruhelJrct'tlrc nppellants, rulto he hnd identified nfter otler fi Veflr of tlrc uinrc, aud rulrc he had fleetingly seeun tuere iu lnct tlrc achtnl rl,tlprits. Ncif/tcr of tlu: lrro Mnsisfunles lmrlr certified I thnl in Ilrc idurlificntion ltracrcrlitrgs llrc otlu'r pcrsafls, nrurorrgsl tplwnt tlrc nppellnnls ruerc plnced, ?lflrti of silnilnr n6'c, /ruiglrf, hrrill nud colourhry, Tlrc main object of lilcntificntiott procccdil.gs r's fo ennble n uifircss to ytroperly idefitfy a persoil itruolaed fu n *inte and to exilude tlrc possiltility of n witne.ss sfrrrply confirming n faint recollection or impression, tlmt is, of at old, yotutgt fnll, sllo rt, tnt, tlin, dnrlc or lnir ntspect,...

9.As re.gnrds tlw identtficntion of the nppellnnts before tlw. trinl court |:v Nnsrr Meltboah (PW^S), Subednr lyltlunaad Ahmed l{hnn (PlN-6) nnd

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bccrutse Irlress Mtlmuurmfi (PW-7) tlmt 766 Ttrill trcrt nssisf tlre Prosecrttiort before llrcir flresc rtrifnesscs lnd n nrmtber of opporttutities ta see tltutr .slnferrrfrr tS utere recarded. In Strlie' u, Fnrrtmtr (PLD 195-5 t)' llu:

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llrnjorilyjrrrlglrrclrtaftulticl,,,,nffi,tlnlMinn!,thelcanrcd necessnry ruherr jrtrlgc ltnl lrckl tlrit nrt irletirificntiorr parale t$ns tlrc ruit,css orrlry ltnd n ftecttitg glirnyse .o! an nccttstd who luns dt lmd sfrnrrgrr rrs cgttrpnr*tl t,- ui,- nrri,serl rults tlrc witness Tlte snnrc principla runs lr1 ,,,r'::t,, ,'r,,,t,ilttr u1 ti'"'or {1'n'qr ??v); ;rrurrtotrs delittoi'red by Nnsir y'rlltrr.t,rl irr ti,.',ll,,,,,,,rrtts i,,,ig,,i,i,,-,' oi tt'i' A"ltttrnrl tt Slnte (lggl -Cottrl' 5CA4I* 752)' Aslnrrr Ziltil J, itt llrt'rn.srr o/ Mi,,,,'* sontt titttc t,n,t i,),"'i'"incrt rpitlt llut nltittclars far ttrc 1"i'0"t. lype o!

irr i,lrir-1 rrlsr, llrrt rtltrltrclr'r' rrcr:rlsiotts t,u,! urru,,i, tlu:it' frrct:s'. Itt rrrrrl CIrr st,r,r,rrrl througlt proqer rrtrsrr tlrc rrrl;,'ifs Tuer{t ttqtt-i'r:el to L* iilcrftifid tltc itt uthiclt the rrlfllffir:rtfforl proceetl.irtgs' ltorueacr' "'n"no' doubts fus ,u'oir"ro,rrt',,rtctl rnise seriotts idcntifictrtio* Ttroccerti,ng, of Frocel:' Tlrc irtenti{ication cf ,aretl nttoue) {;;;';";'''*iiit'itity .ttrc see'rt tlc utprtts oyi-'iitrresises rulto hstl the nppellnrrts itr court fry (bolcl added) rrtortld be l"""''equential"' ftecthryty attc:0 TheSupreffteCcurtCaseofMianSohailAhmedVState(2019 SCMR956)hasalsoemphasizedtlrecar.eanclcautionu.'hichmust / betakerrl,.:ythecourts-in*'*'uringthatanunknownaccusedis ccrrectlY iderrtified' ail irlentifiecl the appellants before Thus, although the eye witness hc after the incident since has iderrtificatiorr paracre rreJd 5 montrrs that he coulcl not ide*tify t*e ar*ritte* before trre identificatlon parade hulia of the them I fincl that I no assaiia*ts as it was too dark u.,J-h*'gave cannot safely rely on his identificatlon of the appellants as the persons of the rn ho allegedly robfred and murdered lris fathet' E'*t' the condtrct as it was a joint idenfification ide*tification parade was legauy defective of whom were dissirnilar and parade, with only 6 dummi*.r-pr*r*nt all at the city court with unmuff-led rhe appelants ;;- producecr rio* iail trrem out to the eye v*irness faces wriere th* police courd have pointecr prior to the identification parade'

Thus, although l place reliatrce on the eviclence of the eSre witness in ferms of the of tl.re actual incicient I place no reliance on his identification appellants who committecl the offence'

(c)With no eye witness evictetrce to the iclentity who carried out the attack the medical evidence irecomes iucousequential a.c it ca, only re'eal wha"t of the tleact kind of weapon/rievicc was usecl arrd ihe seat of tire injuries the injuries' arrcl injurecl lt cannrrt icierrtify tlie person who inflictecl r,r'hilst in police

(d)It is rrotabic tlrat thc appcllants confcsscd to the offctrce cu.rtody however ttrcy we1'e not producer{ before a rnagistrate to record l [reing protluced before a tl-rcir ronfcssions unrler 5.164 Cr.PC despite magistrafe for art iclentification parade and tirus I place uo reliance ou the *pp*llo,rts confessions allcgeCly rnnde before the police'

(e)It cloes not appcal to Ieigic, l'eason or col'Irlrionsense tlrat the appellanls the wotr16 c,infess to such a seriot.ts critne as tlre present one which carried rlr.rlt[ perralty whiist in police cu.stotly whetr there !vas llo er''iclence apiairrsi thcm in tliat case anC, the.y lvere being rlefairred in an Artns casc r.r'l"iich ca.rried a tnuclt lcssei. serrtence,,

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(f)No crrpty was recovered at the crime scene fls u/rongly allegecl by the IO in his eviderlce wllich rnakes tlre police conduct doubtful and as such no enrpty coukl have been tcsted by the policc from a firearm which was recovered in ancther case 4 months nfter the arrest of the appellants. [t has rrot l-recn proven that any firearm relating to this case was recovcred from the appellants. Significantly everr the FSL report was negative when the allegert errrpty recovered at the crime scene was matched with the so callcd pistol recovcred frort the appellants 4 months later on aftet their arrcst in a sepatate case.

(g)Thc appellants taking the police to the place of wardat is irrelevant as the police alreacly knew yrhere the place of wardat wa-s.

(h)it is notabte that t['re complainant also filed an affidavit with the first IO ro withclraw the case which tends to indicate that the appellants might have been imrocent,

(i)No robbed itetns were recovered fronr the appellants on their arrest ancl even the charge in respect of 5j97 PPC apPears to be defective as the appellants were not put on notice that they had committed a robbery and what items they had actrrally robbed.

18.For the reasons discrrssed above I ftnd that the pro.secution case is riddlecl with doubt and as such the appellants are acquitted of tl"te charge, the impugned judgment is set aside, their appeals are allorved ancl the appellants shall be releaserl unless wanted in any other custody case.

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