' M. BILAL KHAN, J.---Sobey Khan son of Jagroop Khan, the petitioner, by filing the instant petition seeks post-arrest bail in case F.I.R. No. 78, dated 6-2-2003, registered at Police Station Kahna, Lahore for an offence under section 364, P.P.C.
2. The prosecution story as it unfolded in the F.I.R. Registered at the instance of Fajar Khan son of Rehmat was that his son Liaqat Ali had close friendly terms with Muhammad Arshad, Muhammad Elashir and Muhammad Nazir sons of Din Muhammad; Liaqat Ali used to stay at the house of his aforesaid friends for three/four days at a stretch and they would eat and sleep together, about a year before the registration of the case, about 2-00 p.m., Liaqat Ali and Muhammad Iqbal were present at his agricultural land when Muhammad Arshad, Muhammad Bashir and Muhammad Nazir came and took Liaqat Ali along with them; on the third day, Din Muhammad met him and told that he would send Liaqat Ali to his house; thereafter they took Liaqat Ali to Karachi; he kept on asking Din Muhammad about Liaqat Ali, who had been replying that he had gone to Karachi and would come back after making some money; he refused to give address of Liaqat Ali; Eid-ul-Fitr approached and Din Muhammad's sons Muhammad Arshad, Muhammad Bashir and Muhammad Nazir had come but Liaqat Ali did not return home; on being asked by him, they did not give any satisfactory answer; a Punchait was convened after Eid-ul-Fitr, wherein they were asked to inform about the whereabouts of Liaqat Ali; in the Punchait, Sobey Khan petitioner and his son Akhtar admonished Din Muhammad and stated that if Din Muhammad and his sons had paid heed to them, they would not have to see this day; thereafter further Punchaits were convened and it was revealed that Liaqat Ali was having an illicit contact with a daughter of Din Muhammad, which fact was verified by Abdul Ghafoor son of Chhotey Khan; the Punchait called upon the accused persons to produce Liaqat Ali within fifteen days but nothing happened; he was sure that his son had been murdered by the accused persons. Resultantly, the instant F.I.R. Had been recorded.
3. The petitioner had been arrested on 18-4-2003 and is in custody eversince. He twice applied for post-arrest bail before the learned Court of Session at Lahore, but his plea was turned down on each occasion. Hence, the instant petition.
4. I have heard the learned counsel for both the sides and have also perused the record brought by Muhammad Yasin, S.I. It has been observed that this Court while seized of a bail application of Muhammad Bashir co-accused bearing Criminal Miscellaneous No.1640/B of 2004, vide order dated 22-3-2004 had issued a direction to the learned trial Court to conclude the trial within four months. Vide order dated 4-5-2005, I had asked the learned trial Court to file a report showing the status of the trial and to give reasons for not having been able to comply with the direction of this Court. In his report submitted by Muhammad Atta Rabbani, Judicial Magistrate Section 30, Model Town, Lahore, who is trying the case, it has been stated that the case has so far not been concluded on account of a variety of reasons. Some of the delay, which has already occurred, is attributable to the accused persons, whereas some delay had taken place on account of an application having been moved by one of the accused,' namely, Muhammad Nazir claiming juvenility and a separate trial. To determine the question of juvenility, the matter also remained pending with the revisional Court (Sessions Court) for quite some time. Be that as it may, the fact remains that the trial has yet not concluded, although the case had been registered as far back as on 6-2-2003 and as already stated the petitioner is in custody since 18-4-2003 i.e. For more than twenty-eight months. He is admittedly in jail and cannot be held liable for the delay, which has been occasioned so far. Apart from the delay, I have also noticed that the allegation against the petitioner is that he and his son Akhtar had stated in the Punchait as under:-- {{URDU TEXT}} Apart from that there is no overt act attributed to the petitioner. It is also discernible from the record that the first Investigating Officer had held the petitioner to be innocent, however, on transfer of investigation, Yar Muhammad Dogar, D.S.P., held him to be guilty. The prosecution does not deny that the petitioner is an elderly man of about eighty years of age and that the conclusion of the trial is not in sight, as the learned trial Magistrate has asked for another period of six months to conclude the same. It is true that the statutory provisions for grant of bail on account of delay have since been deleted but the deletion of the said provisions does not give a carte blanche to the prosecution to protract or procrastinate the trial till infinity. The consequence and the true import or implication of the utterance attributed to the petitioner in the F.I.R. Is to be adjudged and determined during the course of the trial. His culpability as such needs further probe within the meanings of subsection (2) of section 497, Cr.P.C. Even otherwise, the petitioner cannot be retained in custody as a measure of punishment.
5. Resultantly, this petition is allowed and the petitioner is admitted to bail subject to his furnishing bail bonds in the sum of Rs.50,000 (Rupees fifty thousand) with on surety in the like amount to the satisfaction of the learned trial Court.