2005 P Cr (PLP)

Petitioners Farmanullah and Mushtaq Khan have been charged for the murder of Habibullah with .30 bore pistol and kalashnikov respectively vide F.I.R. No.96 dated 8-6-2001 of Police Station Ghazni Khel. Both the accused absconded and after about 3-1/2 years they were arrested on 31-1-2005. After unsuccessful attempts in the Courts below, the present petition for their release on bail has been moved.

2. The learned counsel for the petitioner argued that the occurrence took place during dark night and the prosecution case has not indicated in the site plan the source of light to create the possibility of proper identification of the accused. It was added that although the empties were recovered from the spot but they were not sent to the Forensic Expert for his opinion whether these were fired from one or more than one fire-arms. He argued that even if the crime weapon was not recovered, the opinion of the Arms Expert on the recovered empties was still necessary. He also referred to the delay of 50 minutes in lodging the report that in view of the distance, such a delay was not justified. Finally he pointed out that accused Farmanullah was a juvenile as his date of birth was recorded in the School Leaving Certificate as 1985. So, on the day of occurrence he was merely 16 years of age and deserves leniency for being a minor.

3. The learned counsel for the complainant argued that both the petitioners are directly charged and the role was clearly attributed with the respective nature of weapons. The recoveries have corroborated the weapons used by each of the petitioners, hence, the occurrence was properly supported by the recovery of empties as well as by the medical evidence. While replying to the question of minority of one of the petitioners, the learned counsel argued that although on the day of occurrence the petitioner was juvenile but he absconded and on the day of arrest, he was not juvenile, therefore, section 10(7) of the Juvenile Justice System Ordinance was not applicable to him.

4. The examination of the record, in the light of the arguments, reveals that the occurrence has been prima facie supported by the recovery of empties of the respective weapons allegedly used by each of the accused. They absconded for a long period and were arrested after more than 3-1/2 years. The parties were the residents of the same village and the recognition of the villagers was not a difficult task. The minority does not furnish the licence to kill, and although some concessions can be extended to juveniles during trial and conviction but at bail stage it may not be of great help, particularly when he has attained majority during the period of abscondence. Prima facie the prosecution has an arguable case and without commenting on the merits 'of the case, this petition is rejected. S.A.K./433/P Petition rejected. ***