' Brief facts giving rise to the present application are that on 27-5-2001 at 6-30 p.m. Complainant Ali Sher, his son, deceased, Muhammad Khan alias Altaf Hussain and P.W. Muhammad were sitting and chit chatting in the Otaq. At the above-mentioned time the applicant Wajid Ali came there armed with a pistol. He told the deceased that he was restrained from coming to the village but in spite of that he was visiting the village, therefore, he would not be spared. Thereafter the applicant fired from his pistol at the deceased which hit him and he fell down on the ground. The applicant then ran away. The deceased in injured condition was taken to hospital. Then the complainant went to police station and lodged the report on the same date at 7-45 p.m. On the next day the injured succumbed to the injuries. The applicant was arrested on 5-7-2001. He moved a bail application before the trial Court but the same was dismissed, hence the present application.
2. The learned Advocate for the applicant has stated that the trial Court had observed that it had no jurisdiction to hear the bail application as the proceedings have been stayed by the Honourable Supreme Court of Pakistan in C.P. No.41-K of 2003 decided on 26-6-2003. He has further stated that the controversy between the parties was about the age of the applicant as the trial Court declared the age of the applicant to be below 18 years, therefore, the case was being tried under Juvenile- Justice System Ordinance, 2000. The complainant challenged the said order before this Court but the same was confirmed hence the complainant moved the Honourable Supreme Court of Pakistan where leave was granted and it was directed that the applicant should not be tried under Juvenile Justice System Ordinance, 2000. In order to define "trial" he has contended that the trial is quite different from the interlocutory application as the bail is outcome of an interlocutory proceedings. He has further stated that even if the provisions of Juvenile Justice System Ordinance was not made applicable then the applicant's case should have been examined in the light of general provisions available under section 497, Cr.P.C. But the applicant cannot be denied his right of moving the bail application which is not otherwise stayed by the Honourable Supreme Court of Pakistan. As regards bail of the applicant, he has not touched the merits of the case but stated that the applicant was arrested on 5-7-2001 and till this date only charge has been framed therefore, the applicant is entitled to the concession of bail on the ground of hardship. In this connection he has relied upon' a decision of Division Bench of this Court delivered in the case of Badlo v. State, being Criminal Miscellaneous Application under which 14 Criminal. Miscellaneous Applications were decided viz., 93, 463, 464, 505, 207, 201, 338, 242, 345, 92, 277, 316, 205, 361, 362 of 2004 and 572 of 2002. He has further stated that all the decisions of Honourable Supreme Court of Pakistan and other decisions have been discussed in the said case and it was observed that the delay in disposal of the case comes within ambit of hardship as such the bail was granted. He has, further stated that the said rule may be applied in the present case and bail may be granted to the applicant
3. Learned State counsel has slated that the Honourable Supreme Court of Pakistan had stayed the trial of the case by directing the trial Court not to proceed with the case under Juvenile Justice System Ordinance, 2000 therefore, this Court is not competent to hear the bail which is part and parcel of the trial. On the legal aspect of the case, learned Additional Advocate-General, who was present in the Court, has also advanced his arguments. His view, is that the trial and bail matters are two different subjects. However, he has stated that the Honourable Supreme Court has stayed the trial of the case under Juvenile Justice System Ordinance therefore, the trial cannot be conducted by the 'trial Court. As such stay is not operating against this Court and this Court is competent to hear the bail application which is not coming within the ambit of trial. On merits of the case, the learned State counsel has stated that the charge was framed on 31-8-2001 and thereafter the P.Ws. Had attended the Court on 26 dates but the case was being adjourned on the request of defence counsel or on the request of complainant as the matter was being adjourned firstly for determination of age by a Medical Board which was constituted at the request of applicant and secondly, the matter went to second Medical Board for the same purpose at the instance of complainant and ultimately, the age matter was resolved and the second Medical Board opined that the age of the applicant was above 19 years and below 21 years on 2-10-2002.
He has further stated that then the matter went before the trial Court for determination as to whether the case should be tried under Juvenile Justice System Ordinance or otherwise. The trial Court decided the said point and observed that the matter was to be decided under Juvenile Justice System Ordinance; that the complainant moved this Court challenging the order of the trial Court. This Court confirmed the order of the trial Court and then the complainant went to Honourable Supreme Court of Pakistan where the matter has been stayed on 26-6-2003. In this background he has stated that delay in the disposal of the case was not caused by the prosecution or by the Court but the parties were adopting the legal course as such the case of the applicant does not fall within the ambit of hardship, therefore, the authority relied upon by the Advocate for the applicant is not applicable.
4. I have given due consideration to the arguments and have gone through the material available on record. I find that at the initial stage the dispute arose about the age of the applicant. The matter went to Medical Boards and ultimately the trial Court decided the point that the case would be covered under Juvenile Justice System Ordinance, 2000 by holding that the applicant was below 18 years at the time of the incident, therefore, the trial Court started the proceedings but the complainant challenged the said order before this Court which met with the same result. Then the complainant challenged the order of this Court before the Honourable Supreme Court of Pakistan where the question of determination of age was agitated and in this background the Honourable Supreme Court of Pakistan passed the following order: "2. Issue notice to respondent No.1 and A-G Sindh for a date to be fixed by the office in the next Sessions of this Court at Karachi. Till then the respondent No.1 is not to be tried under Juvenile Justice System."
Thus from the above order it is clear that the direction was given to the trial Court not to proceed with the case of the applicant under Juvenile Justice System Ordinance, 2000. The trial of the case commences by framing the charge which is available in Chapter XXII-A of Part VI of the Code of Criminal Procedure, which starts from sections 265-A to 265-N. The provisions of bail under section 497, Cr.P.C. Are available in Chapter XXXIX of Part IX of the Code of Criminal Procedure.
5. As such both the proceedings are covered by two different Chapters and Parts of Code of Criminal Procedure. Even otherwise the Honourable Supreme Court of Pakistan stayed the proceedings of the trial under Juvenile Justice System Ordinance, 2000. The said order would be operative against the trial Court. There is no stay or direction to this Court for not proceeding with the ancillary or interlocutory matter of the bail. Similar question was considered by a Division Bench of this Court in Criminal Bail Application No.715 of 2004, Azizullah and others v. State. In that case also the Division Bench of this Court observed that the stay was operating against the trial Court and the bail matter could be heard by the Court.
6. Following the said precedent, I am of the considered view that this Court is competent to hear the bail application.
7. As regards, merits of the case, learned Advocate for the ' applicant has stated that the bail may be granted as a case of hardship. The case diaries of the trial Court have been filed before this Court. I have gone through the said diaries and find that the case was received by the Sessions Court on 2-8-2001. The matter was adjourned to 3-8-2001. On that date the police papers were not available which were to be supplied to the applicant as required under section 265-C, Cr.P.C. On 31-8-2001 after compliance of provisions of section 265-C, Cr.P.C. The charge was framed.
Thereafter, the matter was adjourned to 28-9-2001. On that date, Mr. Abdul Razak'Soomro, Advocate filed power on behalf of the applicant who moved application for referring the accused to medical officer for determination of his age. Mr. Abdul Razak Soomro clarified that in that application it was requested that the case might be proceeded with under old law but the diary is silent with regard to that. The matter was adjourned to 18-10-2001. The P.Ws. Were present but the age certificate was not received therefore, the matter was adjourned to 7-11-2001. On that date, the age certificate was received. A request as made that the jurisdiction' of the Court might be determined as such the matter was adjourned to 27-11-2001. On that date, the defence counsel was present, P.Ws. Were not present, therefore, the matter was adjourned to 24-11-2001. On that date, P.Ws. Were not present.
' Thereafter, the learned Sessions Judge, transferred the case to I-Additional Sessions Judge, Larkana and then the matter was fixed for further proceedings. On 17-1-2002 no witness was present as such the matter was adjourned to 7-2-2002. On that date, witnesses were present but the defence counsel was not present as he was out of the country. The complainant request for proceeding with the case. The Court adjourned the matter as the Advocate for the applicant was not present.
' In the meantime medical certificate was received. As the Medical Board observed that the applicant was 17/18 years' of age therefore, the parties were directed to prepare their arguments on the question of jurisdiction of the Court. Thereafter the matter was adjourned to several dates. On 30-3-2003 the applicant moved an application for proceeding the case under Juvenile Justice System Ordinance. Then the matter was being adjourned from time to time either the defence counsel was not present or the complainant's Advocate was not present. In the meantime the applicant also challenged the decision of the Medical Board and requested for constitution of larger Board which was constituted. Again the case was being adjourned from time to time for want of medical certificate and on other grounds. The Medical Board sent report to the Court on 2- 10-2002. On 18-11-2002 the trial Court passed the order that the Court had jurisdiction and the case would be tried under Juvenile Justice System Ordinance, '2000 as the applicant was under 18 fears of age at the time of incident. It appears that the said order was challenged before this Court in revision petition and again the matter was being adjourned from time to time on various grounds probably waiting for the result of revision application. On 14-5-2003 this Court decided the revision petition maintaining the order of the trial Court. The complainant took the matter to the Honourable Supreme Court of Pakistan. On 26-6-2003 the Honourable Supreme Court directed that the applicant should not be tried under Juvenile Justice System Ordinance.
8. From the above facts it is clear that the parties were adopting legal course for redressing their grievances. A legal battle started between the parties firstly for determination of age and secondly for determination of the jurisdiction of the trial Court either to proceed with the case under Juvenile System Ordinance or under general law, therefore, the case has delayed. Now the case has been stayed by the Honourable Supreme Court from 26-6-2003.
9. I have gone through the order in the case of Badlo (supra) relied upon by the learned Advocate for the applicant. The consensus of the authorities relied upon in the case is that if the delay in disposal of the case causes an abuse of process of law then it can be taken a ground for grant of bail.
10. From the above details of proceedings of the case I am of the considered view that the delay in disposal of the case has occurred because of legal battle between the parties on the question of the age of the applicant and jurisdiction of the trial Court. It is not an abuse of process of law because the parties are required to adopt the legal course by approaching the legal forum to redress their grievances. As such the delay in the disposal of the case cannot be taken as a ground for grant of bail in the present circumstances of the case. As such the application is without any force, the same is dismissed.