2017 P Cr (PLP)

MALIK HAQ NAWAZ, J.

The Petitioner was booked for the offences under section 302/34, vide FIR No. 26/2014 dated 25.10.2014 of Police Station Tangir District Diamer.

2. In first round the petitioner failed to obtain relief of bail up to this Court and now it is second round of the bail petition.

3. The main grounds mentioned in the bail application filed before this Court and agitated at bar by the learned counsel for the petitioner is regarding delay in conclusion of trial. The learned counsel submitted that the petitioner was arrested on 30-10-2014 and is likely to complete two years of his continuous detention whereas the period prescribed for release of a Juvenile charged for an offence punishable with death/life imprisonment becomes entitled for the concession of bail if he remained in continuous detention exceeding one year and trial of the case has not been concluded. The learned counsel for the petitioner further submits that the complainant is playing the game of hide and seek with the Court and the prosecution is intentionally not producing the witnesses after rejection of the bail petition from this Court and the malicious attitude of the complainant and the statutory provisions of law be interpreted in favour of accused and he may be released on bail.

4. On the other hand the learned Dy. A.G., rebutted the arguments of learned counsel for the petitioner and submits that the accused committed a heinous offence and the occurrence was witnessed by two P.Ws. namely Wali Rehmat and Afridi. The delay is not on the part of prosecution and the trial could not be concluded because of acts and omissions of both the parties and the accused/petitioner cannot reap the benefits of such a delay.

5. After hearing both the parties and perusing the record it revealed that the accused was arrested on 30-10 -2014 and charge was framed on 06-05-2015. P.Ws. were summoned for 23.5.2015. On 23.5.2015 P.Ws. were absent and bailable warrants were issued against them and the case was posted for 15.6.2015. On 15.6.2015 the P.Ws. were again absent and the case was posted for 27.6.2015. On the so appointed date the P.Ws. again remained absent and non-bailable warrants were issued against them for 20.8.2015. On 20.8.2015 P.W. Wali Rehmat and Afridi were produced before the Court in custody but their statements were not recorded due to absence of a co-witness Mst. Sareil and the case was posted for 5.9.2015. On 5.9.2015 P.Ws. were again absent despite attending the court on previous date of hearing and non-bailable warrants of arrest were issued against them and the case was posted to 01.10.2015. On 01.10.2015 the learned defence counsel was absent and P.Ws. namely Wali Rehmat and Afridi were again produced in custody and the case was posted to 17.10.2015. On 17.10.2015 again the P.Ws. namely Wali Rehmat, Afridi and Mst. Sareil were absent despite their attendance on the previous date and the case was adjourned to 07.11.2015. On 07.11.2015, P.Ws. Afridi and Wali Rehmat were brought in custody but their statements were not recorded due to absence of co-witness Mst. Sareil and the case was posted to 30-11-2015. On 30-11-2015 the learned defence counsel Mr. Sher Alam was absent and the case was posted to 22.2.2016. On 22.2.2016 complainant along with P.W. Afridi was present while Mst. Sareil was again absent and case was posted for 12.3.2016. On 12.3.2016 the Court remained vacant due to posting of the learned trial Judge and case was posted for 25.3.2016. On 25.3.2016 the learned defence counsel was absent and the case was posted to 13.4.2016. On the said date Mst. Sareil was again absent therefore the case could not proceed any further and was adjourned for 7.5.2016. On 7.5.2016 the learned DPP was absent and the case was posted to 30.5.2016. On 30.5.2016 the learned defence counsel was absent and the case was posted to 14.6.2016. On 14.6.2016 statements of P.Ws. could not be recorded on the request of counsel for complainant and learned DPP and next date was fixed 30.6.2016. On 30.6.2016 no P.W. was present and non-bailable warrants were issued for 10.8.2016. On the said date bar was observing strike and case was posted to 31.8.2016. On the said date complainant was not present and the statement of P.W. Afridi was not recorded due to absence of complainant and case was posted to 27.9.2016. On 27.9.2016 P.W. Afridi was present and complainant was again marked absent and non-bailable warrant was issued against the absent P.W.

6. Perusal of the above mentioned order-sheets shows that the complainant and his witnesses intentionally avoided to appear before the court with an ulterior motive just to prolong agonies and miseries of the accused. While disposing of the earlier bail petition on 10.4.2016 it was conceded by the learned Dy.A.G. that the petitioner has been declared juvenile by a medical board held on 17.12.2014 wherein the doctors have opined the age of petitioner ranges from 14 to 16 years. There is no cavil in proposition of law that whenever there are two situations before the court the situation which favours the accused is to be followed. In the instant case the age of the accused has been assessed between 14 to 16 years, hence the provisions of Section 10(7), of Juvenile Justice System Ordinance, 2000 could validly be called in aid of accused/petitioner. Furthermore, it is well settled principle of interpretation of statute that construction of a statute should be beneficial to the citizen and if there can be two interpretation of a provision of law in a statute the one which is consistent with reasons should be adopted and the one which leads to absurdity or unreasonableness or patent injustice to a citizen should be avoided. It would be wholly illogical to penalize an accused person for no wrong act on his own part or any one on his behalf and deprive him of the benefits of the above provisions of law. The point of any justifiable delay which are the result of bona fide acts of an under trial prisoner or his counsel cannot be detected from the period of delay of one year and if the said prescribed period has reached then it is the bounden duty of the court to release such an accused on bail. Additionally there is another principle of interpretation of statute, is that construction placed on a provision in a statute should be such as would suppress the mischief and advance the remedy.

7. As evident from the above order-sheets the accused is likely to complete two years of his continuous detention and his further detention in jail would be against the very spirit of the provisions of Juvenile Justice System Ordinance, 2000.

8. In view of the above discussions the petitioner is admitted to bail subject to furnishing his bail bonds in the sum of Rs.10,00000/- (rupees ten lac only) with two solvent sureties each in the like amount to the satisfaction of trial Court. HBT/136/GB Bail granted.