2017 P Cr (PLP)

SHAHID HAMEED DAR, J.

The allegation against the petitioner, Muhammad Shahid, as per FIR No.595/13, dated 28.06.2013, under sections 302, 34, P.P.C., Police Station Batala Colony, Faisalabad is that he being armed with pistol .30 bore, joined by his armed co-accused, attacked the complainant-party at 10:50 a.m. on 28.06.2013 and callously murdered Muhammad Arshad real brother of the complainant, Muhammad Anser; the specific attribution to the petitioner is that his fire shot landed at the abdomen of the deceased; apparently, motive pertained to a previous dispute between the parties, which occurred sometime before the occurrence, the same day.

2. Learned counsel for the petitioner has contended that the petitioner is not only entitled to grant of bail on merits but also on the statutory ground of delay in conclusion of his trial, as he stood imprisoned since 18.07.2013; the allegation against the petitioner is baseless and he has been falsely roped in this case under a conspiracy by the inimical complainant-party; further contended that the petitioner is not a hardened, desperate or dangerous criminal, so he may be granted bail within the spirit of 5th proviso to section 497(1), Cr.P.C.

3. In contrary to it, learned Deputy Prosecutor General Punjab assisted by learned counsel for the complainant has opposed this application by contending that the petitioner actively participated in the occurrence and inflicted fatal injury on the body of the deceased; the medical evidence is consistent with the eye-witness account; the petitioner conducted himself callously at the crucial hour so he may be dubbed a hardened and desperate criminal; the petitioner used various tactics to protract proceeding of the trial by moving frivolous petitions before the trial court as well as before this court; a private complaint filed by the petitioner's mother on 07.04.2014 caused wastage of months-time before she produced cursory evidence under section 202, Cr.P.C.; lastly contended that the petitioner could not blame the complainant side for delay in conclusion of the trial being himself accountable for it, therefore, he may not be released on bail.

4. After hearing the learned counsel for the parties and perusing the record, it is observed that so far as merits of the case are concerned, the petitioner cannot be held entitled to grant of bail, having allegedly authored a terminal injury on the body of the deceased, which is directly corroborated by the medical evidence. The eye-witnesses still support the prosecution-case, which brimmed with incriminatory material against the accused. There exists no such circumstance, which might bring his case within the precincts of section 497(2), Cr.P.C.

5. So far as the petitioner's alternate plea for grant of bail on statutory ground of delay in conclusion of his trial is concerned, the record reveals that he was arrested on 18.07.2013 and he has continuously been in jail since then. His trial virtually commenced on 08.03.2016, when he was indicted by the learned trial court for the first time, about 2-1/2 years after he was taken into custody. Learned counsel for the complainant has submitted that it is the accused/petitioner, who has occasioned delay in conclusion of his trial, as he made certain moves, including presentation of an application on the issue of juvenility on 17.02.2015, which he withdrew on 02.09.2015 and institution of a revision petition by him before this court on 24.04.2015, whereby, he wasted a lot of time in a calculated manner so as to claim, one day, the benefit of 5th proviso to section 497(1), Cr.P.C. I am afraid, both the petitions were lawfully instituted by the petitioner, which could not, in any way, obstruct proceedings of the trial or tie hands of the learned trial court in any way. If any lassitude or unnecessary latitude has been shown by the trial court, while dealing with the petitioner's application on the question of juvenility, he could not be held liable for it. It has also been submitted by the learned counsel for the complainant that the petitioner's mother filed a private complaint against the complainant-party of the FIR-case on 07.04.2014, which also took months for the learned trial court to admit it to regular hearing. The time elapsed in between institution of the said complaint-case and the order made under section 204, Cr.P.C. couldn't again be attributed to the petitioner, as it was a matter, which could hardly obstruct proceedings of the challan-case being faced by the petitioner and his co-accused. The fact remains that he has been in jail for more than two years and his trial has not concluded as yet, rather it is still miles away from the stage of being concluded in final terms. There exists little to believe that he is a hardened, desperate or dangerous criminal. He has not been shown to have ever committed an act of terrorism, punishable within the provisions of the Anti-Terrorism Act, 1997. His case is not hit by any of the embargoes of the 6th proviso to section 497(1), Cr.P.C., nor could it be inferred that he or any other person acting on his behalf has occasioned delay in conclusion of his trial. Law does not require that one should be left to rot in jail only to satisfy the grudge of the complainant and what essentially needed to be satisfied is, the requirement of law on the subject. Keeping him continuously confined in jail for an indefinite period of time would not be advisable.

6. Therefore, this application is accepted and he is admitted to post arrest bail subject to furnishing bail bonds in the sum of Rs.5,00,000/- with two sureties each in the like amount to the satisfaction of the learned trial court. JK/M-105/L Bail granted.