2022 PLP 278 (MLD)

MUHAMMAD TARIQ NADEEM, J.

Through this petition the petitioner Muhammad Tanveer has sought bail after arrest in case FIR No. 110 dated 24-02-2020 registered under Section 302, P.P.C., at Police Station City Pattoki, District Kasur.

2. Succinctly, the facts of the case as gleaned out from the contents of FIR are that on 24-02-2020 at 3:00 p.m. the petitioner made straight fire shots with pistol 30 bore upon the son of the complainant namely Asif at different parts of his body, when he was present at cattle shed of his relatives, as a result of which he died at the spot.

3. I have heard learned counsel for the petitioner as well as learned Deputy Prosecutor General assisted by learned counsel for the complainant meticulously and perused the record minutely with their able assistance.

4. The instant bail application has been conjured on merits, as well as, on statutory delay in conclusion of trial of the petitioner.

5. As far as merits of the case in hand is concerned, after scanning the record, it transpires that injury No.1 mentioned in the FIR is exit wound, whereas, injury No. 2 narrated in the FIR is not found mention in the post-mortem report of the deceased. Similarly, injuries Nos.4 to 6 are not available in the autopsy report of the deceased, Asif. The supra mentioned facts depict that there is direct conflict between ocular and medical evidence and it is by now well settled that benefit of doubt at bail stage in that regard must go to the accused. Reliance is placed upon the case law titled as "Awal Khan and 7 others v. The State through AG-KPK and another" (2017 SCMR 538).

6. Considering the other ground of juvenility, this Court has noticed that Juvenile Justice System Ordinance, 2000 has been repealed by the Juvenile Justice System Act, 2018. This Act came into force on 18.05.2018 while the occurrence, as reported in the crime report, took place on 24.02.2020. Juvenile Justice System Act, 2018 is, therefore, fully applicable to the case in hand. Definition of 'child' has been described in section 2(b) of Juvenile Justice System Act, 2018, which is reproduced as infra:- "Child " means for the purposes of this Act a person who has not attained the age of eighteen years". The petitioner was declared juvenile by the learned trial court vide order dated 19-01-2021. According to subsection (5) of section 6 of Juvenile Justice System Act, 2018, the period of statutory delay for release of a juvenile under the Act ibid has been reduced to six months, which reads as under:- "Where the Juvenile Court is of the opinion that the delay in the trial of a juvenile has not been occasioned by an act or omission of such juvenile or any other person acting on his behalf or in exercise of any right or privilege under any law for the time being in force, such juvenile shall be released on bail if he has been detained for a continuous period exceeding six months and whose trial has not been completed." In the light of above, the period of statutory delay of one year for offences punishable for death under the Juvenile Justice System Ordinance, 2000 has been reduced to six months under the Juvenile Justice System Act, 2018 and the proviso under section 10(7) of the erstwhile Ordinance, 2000 stating that bail may be refused to a juvenile offender if he is 15 years of age or above and there are reasonable grounds to believe that the juvenile is involved in a heinous offence or is a previous convict for an offence punishable under death or imprisonment for life, which has been repealed under the new Juvenile Act, 2018. Section 6(5) of the Juvenile Justice System Act, 2018 provides that the juvenile will be entitled to be released on bail if he has been detained for a continuous period exceeding six months while his trial has not been concluded, unless the delay has been occasioned by the act or omission of such a juvenile, therefore, the period of declaring the child as juvenile will not be attributable to the petitioner. The petitioner was arrested in this case on 03-03-2020 and the charge was framed on 25-02-2021 and his statutory period has already elapsed on 02.09.2020. Record further evinces that the petitioner did not contribute towards the delay in the conclusion of his trial and so far nothing exists on the record to believe that the petitioner is a hardened, desperate or dangerous criminal or he is a previously convicted offender of an offence punishable with death or imprisonment for life or he is accused of an act of terrorism punishable with death or imprisonment for life. It has vociferously been argued by learned DPG assisted by learned counsel for the complainant that delay in conclusion of trial has been occasioned due to the conduct of petitioner because he filed an application for declaring him juvenile, thus, time consumed in deciding the said application, for the reason petitioner is responsible for the delay in conclusion of trial. I am not in agreement with this argument because it is a procedural delay and no one can be deprived from any legal right. I fortify my view from the following case law reported as "Saleem Khan v. The State and others" (PLD 2020 SC 356). For the above reasons the petitioner being a juvenile offender was entitled to bail on statutory ground. Wisdom is also derived from the case laws cited as "Wahid Bakhsh Khoso v. The State" (2006 MLD 507), Sikandar v. The State (2006 PCr.LJ 1648) and Mehar alias Mehaar v. The State (2009 PCr.LJ 47).

7. It has been consistently held by the Superior Courts of the country that if a case, on such statutory delay in conclusion of trial, is made out then ordinarily bail should not be refused on hyper technical grounds. Reliance in this regard may be placed on the ratio decidendi laid down by the august Supreme Court of Pakistan in cases of Zahid Hussain Shah v. The State (PLD 1995 SC 49), Adnan Prince v. The State and others (PLD 2018 SC 147) and Muhammad Azeem v. The State and others (2020 SCMR 458).

8. For the above reasons, this petition is accepted and petitioner Muhammad Tanveer is allowed post-arrest bail subject to his furnishing bail bonds in the sum of Rs.5,00,000/- with one surety in the like amount to the satisfaction of learned trial Court.

9. It is, however, clarified that the observations made hereinabove are tentative in nature, and strictly confined to the disposal of this bail petition. SA/M-159/L Bail granted.