' Nazish Abbas-petitioner and others, namely, Gul Sanobar, Musharaf alias Mushi, Muhammad Akhtar, Mazhar Abbas, Zulfiqar alongwith two unknown persons are booked by Mst. Manzoor Fatima-complainant in case F.I.R. No.402, dated 24-3-2003, under sections 302/34/109, P.P.C., registered with Police Station Gulberg, Lahore for the murder of Zafar fhissain.
2. Gul Sanobar after the investigation was not found linked with the crime. Musharraf alias Mushi and two unknown persons were carrying 222 rifles and they are alleged to have killed Zafar Hussain after having counselled with Muhammad Akhtar, Mazhar Abbas and Zulfiqar. Name of petitioner is not mentioned in the First Information Report. He was implicated by Malik Asad and Najam-ul- Hassan P. Ws. Through their statements on 30-3-2003, which fact is available in Zimni No.6, dated 30-3-2003 drawn up by Maqsood Ahmad, S.-I./Investigating Officer of the case.
3. During course of investigation, petitioner was arrested by the police on 4-4-2003. He preferred his application for grant of post-arrest bail before learned Sessions Judge, Lahore, who made over the same to a learned Additional Sessions Judge for adjudication purpose. The said learned Judge after fullest evaluation of facts and circumstances of the case, proceeded to dismiss the same through his order dated 24-6-2003 containing a variety of reasons for refusal thereof. Now he has approached this Court by filing the instant petition seeking same relief.
4. Learned counsel for the petitioner strenuously argued that according to Secondary School Certificate, date of birth of the petitioner is 1-4-1987, which on the day of occurrence comes to fifteen years, eleven months and twenty three days, genuineness of which has not been challenged so far, that no serious role has been assigned to him and that his further detention in jail is not likely to advance cause of the prosecution in any manner.
5. Learned counsel for the State, after due consultation of investigation record, submits that petitioner was found guilty during course of investigation and that challan has been put up before trial Court. He resists this petition.
6. I have given my anxious considerations to respective arguments of learned counsel for both the sides. Admittedly, petitioner was not carrying any weapon at the relevant time of occurrence and as such no injury is attributable to him. He is simply shown to be present at the relevant time of occurrence. No recovery was made from him and he had no earthly reason to join hands with his co-accused to consume the life of Zafar Hussain. At present, he seems to be taken as a teenager, his case is covered under the proviso to subsection (1) of section 497, Cr.P.C., which deals with persons under sixteen years of age, woman and all those, who are sick or infirm. After taking all these facts and circumstances into my full consideration. I am of the firm view that allegation brought against the petitioner calls for a further probe.
7. Accordingly, by accepting this petition, I direct that the petitioner be released from custody, subject to his furnishing bail bonds in the sum of Rs.50,000 with two sureties each in the like amount to the satisfaction of Trial Court.