2011 PLP 1671 (YLR)

MIAN FAISH-UL-MULK, J.

Petitioner Siraj Khan son of Saudagar along with five others have been arrested by the police of Anti Narcotics Force, Haripur and case was registered against them vide F.I.R. No. 1 dated 18-8-2010 for alleged commission of offence under sections 9 C.N.S.A. and 13 Arms Ordinance. Petitioner applied for post arrest bail before the court of learned Special Judge (C.N.S.) Peshawar which was turned down vide order dated 16-9-2010. Thereafter, petitioner filed Criminal Miscellaneous No.494 of 2010 before this Court, which came up for hearing on 6-12-2010 and the same was dismissed vide common order in Criminal Miscellaneous No.424 of 2010. A direction was however issued to the learned trial Court to conclude the trial of case within shortest possible time but not later than two months.

2. It is to be noted that when challan against petitioner Siraj Khan and others was submitted in Special Court, petitioner Siraj Khan submitted application for his examination through Standing Medical Board for determination of his age. Application of the petitioner was allowed and he was examined by the Standing Medical Board in the light of order passed by Special Court (CNS) Peshawar. Learned Special Court after hearing the counsel for the parties declared petitioner to be juvenile offender and prosecution was directed to submit challan against him in the proper Court established under Juvenile Justice System Ordinance, 2000 at Haripur.

3. Petitioner approached Special Judge Juvenile/Additional Sessions Judge-III, Haripur for his release on bail on fresh grounds that delay has been caused by the prosecution in filing complete challan against petitioner and non-compliance of direction of High Court regarding conclusion of trial within two months. Request of petitioner was not acceded to before the Special Judge Juvenile therefore he has approached this Court for the same relief.

4. Learned counsel for petitioner contended that direction of this Court ought to have been complied with in letter and spirit but the prosecution has utterly failed to act upon the said direction. It was argued that trial was also required to be concluded within statutory period under the provisions of Juvenile Justice System Ordinance as petitioner is behind the bars since 18-8-2010. It was concluded that delay in conclusion of trial was not attributable to petitioner, therefore, he is entitled to be released on bail on fresh grounds. Reliance is placed on 1997 SCMR 436, 1999 SCMR 2147, 2003 MLD 1504, 2009 PCr.LJ 47, 2011 YLR 341 and 2006 SC 1805.

5. Learned State counsel opposed the bail petition on the ground that prosecution has not violated the direction issued by this Court rather the time has been consumed in the process of Standing, Medical Board, which was constituted on the application of petitioner. He further contended that minority is no ground for grant of bail, if otherwise petitioner is not entitled to concession of bail. It was submitted that petitioner is prima facie connected with an offence, which falls within the prohibitory clause of section 497, Cr.P.C. It was concluded that no fresh ground for release on bail is available to the petitioner therefore application is liable to be rejected. 4(sic) Arguments heard and record perused. 5(sic) It is evident from order dated 6-12-2010 that this court while refusing bail to the petitioner issued direction to trial Court regarding conclusion of trial of case within shortest possible time but not later than two months. Despite direction of this Court trial against petitioner has not been commenced what to say of its conclusion. Delay of the same cannot be attributed to the petitioner because he has availed his legal right by submitting application for determination of his age. It was the duty of prosecution to get determined age of the petitioner at investigation stage but prima facie it appears that prosecution has intentionally avoided getting the age of petitioner determined to keep him away from claiming benefit and privileges of minority available to him under the law. The prosecution has failed to advance any reason for non-compliance of direction of this Court. It has consistently been held by the apex Court that whenever a specific direction is issued by a superior court, it must be acted upon or atleast some efforts towards achieving that object must appear to have been made. In the present case, no measures were taken for faithful compliance of Court direction, which constitute a sufficient ground for enlargement of accused on bail. Even otherwise there is no likelihood of conclusion of trial in near future, thus in these circumstances, case for bail on fresh ground is made out in favour of the petitioner being juvenile offender.

6. Consequently, this bail petition is allowed and it is directed that petitioner be released on bail provided he furnishes bail bonds in the sum of Rs.90,000 with two sureties each in the like amount to satisfaction of learned Additional Sessions Judge-III, Haripur. H.B.T./162/P Bail granted.