2017 PLP 439 (YLRN)

SHAHID HAMEED DAR, J.

The allegation against the petitioner, Shehzad Ashraf as per FIR No.591/13, dated 03.12.2013, under sections 302, 109, 34, P.P.C., Police Station Saddar Kharian (Gujrat) is that he being armed with pistol .30 bore, joined by his armed co-accused, fired at Khawaja Javed Iqbal, real father of Kamran Javed (complainant) and downed him seriously wounded; the accused fled the spot after committing the crime.

2. Khawaja Javed Iqbal injured succumbed to the injuries later on, the same day which led to insertion of section 302, P.P.C. to the list of offences. The petitioner was arrested in this case on 18.12.2013 and he has been in jail since then.

3. Learned counsel for the petitioner has submitted that the petitioner was twice declared a juvenile by the learned trial court, but his juvenility has been challenged again before this court by the complainant through Crl. Rev. No.1075-2016 which is still pending adjudication; the petitioner is not a hardened, desperate or dangerous criminal nor has he ever been involved in any act of terrorism punishable by death or imprisonment for life; the petitioner or any other person acting on his behalf has not occasioned delay in conclusion of the trial in any manner. Lastly submitted that the petitioner's trial is far off from the stage of conclusion, therefore, he may be set at liberty.

4. On the other hand, learned Deputy Prosecutor General Punjab assisted by learned counsel for the complainant has opposed this application by contending that the petitioner acted in a desperate manner while committing the crime, hence he may be believed a hardened, desperate and dangerous criminal; the petitioner's delayed plea regarding his juvenility has consumed much of the time of the learned trial court. hence he is solely responsible for causing delay in conclusion of his trial.

5. After hearing the learned counsel for the parties and perusing the record, it is observed that the issue of petitioner's juvenility is not of much relevance for disposal of this bail-application, as he has been in jail since 18.12.2013, accumulatively extending to more than three years. His trial has not concluded as yet. So far as the allegation that he and his co-accused jointly fired at and murdered Khawaja Javed Iqbal, real father of Kamran Javed (complainant), is concerned, it hardly engrained any such element whereby he may be dubbed a hardened, desperate or dangerous criminal. Learned Counsel for the complainant has submitted that three prosecution witnesses had been recorded as back as on 25.10.2014 and 24.03.2015, whereafter a legal battle ensued between the parties on the question of juvenility of the petitioner, as learned trial court twice declared him a juvenile, firstly, on 08.07.2015 and then on 23.09.2016, after the issue was remanded to it by this court, vide order dated 21.04.2016, passed in Crl. Rev. No.1067-2015 the time lost in this legal struggle may be resolved against the petitioner as his delayed plea of juvenility resulted in wastage of precious time of the trial court. This particular argument of the complainant's learned counsel is hardly tenable, as petitioner did not resort to any such tactic(s), which may be termed unlawful or vexatious or injurious to the proceedings of the trial court. He was within his right to press his claim of being a juvenile and it was for the courts to decide it as per their convenience. In the present situation, the petitioner, even if may not be treated a juvenile, has qualified himself for the relief sought after, being in jail for more than three years. He cannot be believed to have occasioned delay in conclusion of his trial in any manner nor could it be so presumed against the person, who represented him at trial. He has never been involved in any act of terrorism punishable under the Anti Terrorism Act, 1997. His case is not seemingly hit by any of the embargos of the fifth or sixth proviso to section 497(1), Cr.P.C. It is certainly not the requirement of law that an under-trial prisoner should be left to rot in jail only to satisfy the grudge of the complainant.

6. Therefore, this application is accepted and the petitioner is admitted to post arrest bail subject to furnishing bail bonds in the sum of Rs.10,00,000/- (one million) with two sureties each in the like amount to the satisfaction of the learned trial Court. WA/S-31/L Bail granted.