2008 PLP 163 (MLD)

IQBAL HAMEEDUR REHMAN, J.

The petitioner seeks post-arrest bail in case F.I.R. No.401, dated 9-10-2002 registered under sections 302 and 460, P.P.C. at Police Station City Burewala.

2. Briefly stated the prosecution case as contained in the F.I.R. is that on 9-10-2002 at about 2-00 a.m. (mid-night), the complainant along with her husband Abdul Ghafoor deceased, her nephew Maqsood and Arshad was sleeping in residential room. Her son Azeem and daughter were sleeping in the veranda, when all of a sudden, Mst. Neelofar daughter of the complainant raised alram, on which they awoke. Abdul Ghafoor deceased on the electric bulb saw outside that a fire was hit at him by a person standing at the window, which hit in front of neck (throat) of Abdul Ghafoor, husband of the complainant, who fell on the ground. The complainant, Muhammad Maqsood and Arshad in the light of electric bulb in the courtyard saw four persons armed with deadly weapons available in the courtyard, who fired on the husband of the complainant, Abdul Ghafoor, who was immediately taken to the hospital but he died due to firing of the accused persons.

3. It is contended by learned counsel for the petitioner that the petitioner is innocent and has been falsely involved in the case; that the petitioner is not nominated in the F.I.R. and he had been arrested subsequently under section 54, Cr.P.C. on the extra judicial confession of the co-accused Arshad; that there is no direct evidence against the petitioner; that co-accused Arshad used to driver rickshaw of the complainant and on 4-11-2003 identification parade was held in which the eye-witness Arshad could not identify the petitioner and only the complainant had identified him; that the petitioner had been arrested on 21-10-2003; that after his arrest, the medical board was constituted on 9-10-2004 which declared the petitioner to be the age of 17 to 19 and the occurrence had taken place on 9-10-2002, as such in view of the report of the medical board, the petitioner was of 15 years of age at the time of occurrence, which shows that the petitioner is a juvenile and he deserves for the concession of bail under section 10(7)(a) of the Juvenile Justice System Ordinance, 2000 and in this respect reliance is placed upon Wajid Ali v. The State (2006 PCr.LJ 542) and Sikandar v. The State (2006 PCr.LJ 1648); that no recovery has been effected from the petitioner; that no injury is attributed to the petitioner and only one fire-arm injury has been attributed to Faiz co-accused; that inspite of the lapse of four years, the trial has still not concluded; that earlier vide order, dated 27-10-2005 passed in Criminal Miscellaneous No. 2809-B of 2005, a direction was issued to the learned trial Court to expeditiously decide the case within three months but the trial has not concluded within the stipulated period and the purpose of trial is not to punish the accused without trial, therefore, he is entitled to bail and in this respect reliance is placed upon Hidayatullah v. The State (2007 YLR 1311); that the petitioner was arrested on the extra-judicial confession of the co-accused Arshad, which is a very weak type of evidence and as such the case of the petitioner has become one of further inquiry and in this respect reliance is placed upon Ghulam Farid v. State 2005 YLR 1573 and Muhammad Shafique etc. v. The State 2004 PCr.LJ 1855.

4. On the other hand, bail has been opposed by learned counsel for the complainant as well as the learned DPG, stating that the challan has been submitted in the Court.

5. Arguments heard. Record perused.

6. Sufficient evidence is available on the record to show that the petitioner is a juvenile and under section 10(7)(a) of the Juvenile Justice System Ordinance, 2000, he is entitled to bail as he is in jail since 21-10-2003. Reliance in this respect is placed upon Wajid Ali v. The State (2006 PCr.LJ 542) and Sikandar v. The State 2006 PCr.LJ 1648. No recovery has been effected from the petitioner. No injury is attributed to the petitioner. There is in ordinate delay in the trial of the petitioner which has not been caused on account of the petitioner, as such he is entitled to bail. Reliance in this respect is placed upon Hidayatualh v. The State (2007 YLR 1311), wherein the accused was behind the bars for the last about four years but the case had not proceeded despite direction of High Court to the trial Court that trial be concluded within ninety days and it was held that "delay in prosecution of the case though no more was available as statutory right of accused but grant of bail on the ground of inordinate delay in conclusion of trial had always been considered. Further extra-judicial confession through which the petitioner has been involved is a very' weak type of evidence and c as such the case of the petitioner has become one of further inquiry and in this respect reliance is placed upon Ghulam Farid v. State 2005 YLR 1573 and Muhammad Shafique and others v. The State 2004 PCr. LJ 1855.

7. In view of the above perspective, the petitioner is allowed bail subject to his furnishing bail bonds in the sum of Rs.50,000 (rupees fifty thousand only) with one surety in the like amount to the satisfaction of the trial Court. N.H.Q./M-542/L Bail allowed.