2017 PLP 399 (MLD)

SHAHID HAMEED DAR, J.

The petitioners, Sharafat Ali, Muhammad Khan (Crl.Misc.No.3352-B/2016), Jaffar Ali Zafar (Crl. Misc. No. 9220-B/2016) and Muhammad Tayyab Raza (Crl. Misc. No. 11028-B/2016), a juvenile, seek post-arrest bail on the statutory ground of delay in conclusion of their trial in case-FIR No. 383/2013, dated 5.9.2013, under sections 324, 364-A, 337-A(i), 337-F(i), 337-L(2), 336, 148, 149 P.P.C., registered at police station Chak Baidi (Pakpattan Sharif), on the complaint of Muhammad Haroon. All three above-noted applications are compositely decided hereby.

2. Precisely, the story of FIR as narrated by the complainant is that his maternal nephew Atta Ullah, a student of seventh class and paternal nephew Muhammad Waqas, a student of eighth class in Government Elementary School of the village were forcibly dragged out from the school by the accused-petitioners and their co-accused, all armed with different weapons, at about 7.30 a.m. on 5.9.2013, where they rendered them naked and committed violence on them; on hearing the noise of the children, he, his brothers Muhammad Ishaq, Zahoor Ahmad and his two sons, Abdul Jabbar and Muhammad Altaf reached the spot; the accused raised Lalkaras, when they saw them; Muhammad Khan accused fired into the chest of his son Abdul Jabbar by means of .12-bore repeater-gun and Sharafat Ali accused fired at left calf and buttock of his brother Zahoor Ahmad, due to which they both fell on the ground badly wounded; Muhammad Yaqoob co-accused inflicted a sota blow on the head of Muhammad Altaf, whereas Muhammad Nasir co-accused caused an injury on the head of Muhammad Ishaq and one, at a finger of left hand of Atta Ullah; the motive behind the occurrence pertained to a previous quarrel between his paternal nephew Muhammad Waqas and Muhammad Tayyab (petitioner), that took place a day earlier. A cross-case was set up by the accused on 5.9.2013 for offences under sections 324, 148, 149, P.P.C, which was recommended for cancellation by the Investigating Officer vide case-diary dated 11.1.2014. The complainant's name thereof was Khadim Hussain.

3. After hearing the learned counsel for the parties and perusing the record, it is observed that Muhammad Tayyab Raza (petitioner), who was declared a juvenile by the learned trial court on 28.7.2016, was arrested on 8.3.2015 and Sharafat Ali, Muhammad Khan and Jaffar Ali Zafar (petitioners) on 30.1.2014. Their trial has not concluded as yet, nor did there exist any symptoms thereof, anywhere near. The petitioners were indicted long before, on 1.7.2015, but no prosecution witness has been recorded so far, for a variety of reasons, not necessarily attributable to the petitioners. Learned counsel for the complainant repeatedly contended that jail authorities did not produce the accused before the trial court on many an occasions, being in league with them and thus constructively subscribed toward protracting the trial; besides, a sizeable chunk of time was lost, as some of the accused maliciously moved baseless applications, under a calculated plan, to occasion delay in conclusion of their trial. When asked to identify those applications, the learned counsel submitted that sometimes it was the question of juvenility of an accused or it involved a frivolous subject, bound to cause sheer wastage of time. It appeared from the record that in more than two years time, the prosecution produced some of its witnesses only on four occasions, 17.9.2015, 9.10.2015, 24.11.2015 and 9.12.2015, but only whence, some of the co-accused of the petitioners and sometimes a few of them were not produced from the jail. The petitioners could not be held responsible for the said idleness of the prosecution, as being in jail, their movements were curtailed and regulated by the jail authorities.

4. It has been brought to the knowledge of this court that Ghulam Rasool, a co-accused of the petitioner has been granted bail before arrest by the Hon'ble Supreme Court of Pakistan vide order dated 28.6.2016 passed in Criminal Petition No.796-L of 2016. For majority of the facts, his case assimilated with that of the petitioners, hence, his admission to bail by the apex court, is a significant circumstance, which warranted close following thereof, in the instant case(s). There existed little to believe that the petitioners are hardened, desperate or dangerous criminals. They have not been shown to have ever committed an act of terrorism, punishable under the Anti-Terrorism Act, 1997 or the other allied laws. Being in jail for such a long period of time, easily exceeding the statutory limits, they have earned a valuable right of being released on bail under the 5th proviso to section 497(1), Cr.P.C. If some of their co-accused have been playing hide and seek with the trial court or causing delay in conclusion of their trial, the petitioners could not be saddled with any responsibility in this regard nor could they be penalized for it. Reliance in this regard may be had on Muhammad Afzal Butt alias Aphi v. The State and others (2015 SCMR 1696).

5. For the foregoing reasons, these applications (Crl. Misc. No.3352-B/2016, Crl.Misc.No.9220-B/2016 and Crl.Misc.No.11028-B/ 2016) are accepted and the petitioners, Sharafat Ali, Muhammad Khan, Jaffar Ali Zafar and Muhammad Tayyab Raza are admitted to post-arrest bail subject to furnishing bail bonds in the sum of Rs.5,00,000/- (five lac) each with two sureties each in the like amount to the satisfaction of the learned trial court.

6. Before parting with this order, it is directed that the learned trial court would speed up proceedings of the trial of the petitioners, so as to conclude it within six months from the date of communication of this order. If the petitioners hesitated in cooperating with the trial court as regards conclusion of their trial, the prosecution/complainant would be at liberty to move against them under section 497(5), Cr.P.C.

7. A copy of this order be transmitted to the learned trial court through some sift means for necessary information and compliance. JK/S-77/L Bail granted.