Through the instant petition, petitioner seeks post-arrest bail in case FIR No, 79/2007 dated 4.2.2007 registered under Sections 302/324/34 of the PPC at Police Station Khairpur Tamewali, District Bahawalpur.
2. Briefly, the prosecution story according to the FIR lodged by the complainant Muhammad Nawaz is that his son Allah Bachaya (deceased) had developed illicit liaison with Mst. Zahooran Mai wife of Jindwadda. The complainant time and again asked his son (deceased) to abandon the said liaison and Jindwadda, husband of Mst. Zahooran Mai also made complaint to the complainant but on the day of occurrence i,e, 3.2.2007 at 10.00/11.00 p.m., son of the complainant namely, Allah Bachaya went to the house of Jindwadda. The complainant and PWs Khadim and Haq Nawaz were going toward Chah Berwala. When they reached near the house of Jindwadda, they heard noise from inside his house. They went to his house where they saw the accused Sarfraz alias Faraz armed with .12 bore gun, Manzoor Ahmad armed with sota, Mst. Kalsoom armed with sota and Zulfiqar were present there. Zulfiqar was saying to the aforesaid accused that Allah Bachaya be taught a lesson for having illicit liaison with Mst. Zahooran Mai. Meanwhile, Mst. Zahoorau Mai came forward and forbade them but accused Sarfraz and Manzoor started causing injuries to her with sota and butt of the gun. Allah Bachaya son of the complainant tried to run away whereupon accused Sarfraz fired a straight shot at him with his .12 bore gun hitting him on his left thigh, who fell down. Accused Manzoor gave a sota blow which hit on the right side of his head, Mst. Kalsoom gave a sota blow which also hit on the left side of his head, whereafter Faraz gave a butt blow on his right shin. Zulfiqar accused, who was standing nearby, continued uttering lalkara. The complainant and the PWs intervened and saved Allah Bachaya from the clutches of the accused.
3. Initially, the FIR was recorded under Sections 324/34 of the PPC. Later on as Allah Bachaya died in the hospital due to the injuries suffered by him at the hands of the accused, therefore, Section 302 of the PPC was added.
4. It would not be out of place to mention here that earlier the petitioner filed Crl. M. No, 522-13- 2007/BWP before this Court for grant of post-arrest bail, which was withdrawn on 30.10.2007. The petitioner repeated his prayer through Crl. M. No, 60-B-2008/BWP, which was disposed of on 11.3.2008; however, with a direction to the learned trial Court to conclude the trial within four months. Since the trial could not be completed by the learned trial Court within stipulated period, the petitioner once again knocked the door of this Court for grant of post-arrest bail vide Crl. M. No, 1065-B-2008/BWP but again the request was turned down and application was disposed of on 26.9.2008 directing the trial Court to complete the trial within one month. The trial had not yet seen its end; therefore, the petitioner has filed this fourth application for grant of bail.
5. The learned counsel for the petitioner contends that the case against the petitioner has been registered dine to enmity and with mala fide intention; that after registration of the FIR the complainant changed his stance and got recorded another version through an application under Section 22-A, Cr.P.C. submitted before the learned Additional Sessions Judge, Bahawalpur on 14.3.2007 wherein he backed out from his previous stance taken in the FIR qua the role of the petitioner as well as other accused persons and alleged that the police had not recorded the FIR as narrated by him and further he also changed the motive and stated that earlier the accused persons had abducted his niece and Allah Bachaya, his son had been pursuing the said case, for which the accused were annoyed with him and, therefore, had murdered him; that being dissatisfied-with the investigation of the police, the complainant filed a private complaint under Sections 302/114/148/149 of the PPC on 10.9.2007; that Mst. Zahoor Bibi also filed a complaint against the complainant party which was dismissed ,vide order dated 24.3.2008 passed by the learned Additional Sessions Judge, Bahawalpur and in a revision petition (Crl. Revision No, 45-2008/BWP) filed by Mst. Zahoor Mai notice was ordered to be issued and the proceedings in the complaint filed by Muhammad Nawaz, complainant were stayed, that despite direction of this Court on couple of occasions, the trial of the case has not been concluded so far and due to stay of proceedings in the complaint filed by Muhammad Nawaz complainant, there is no likelihood of conclusion of the trial in near future; that. sine Mst. Kalsoom Mai, co-accused of the petitioner has already been admitted to post arrest bail by this Court vide order dated 5.8.2008 passed in Crl. M. No, 742-B- 2008/BWP, the petitioner is also entitled to bail on the basis of rule of consistency; that according to the "Saza Slip" annexed with the report under Section 173, Cr.P.C. the age of the petitioner is 16/17 years and that the complainant has specifically mentioned in his application under Section 22-A, Cr.P.C. that the police in connivance with other accused persons and to save their skin involved a minor namely, Sarfraz (petitioner) in this case, therefore, he is juvenile; that the petitioner is in jail since 8.2.2007 and no more required for further investigation. The learned counsel for the petitioner has further contended that Manzoor Ahmad and Zulfiqar co-accused who were nominated in the FIR with a specific role have been found innocent during the investigation, which fact makes the case of the petitioner one of further 'inquiry'. The learned counsel has relied upon Muhammad Aslam vs. The State (1999 SCM R 2147) to contend that in spite of the direction issued for conclusion of trial within specified period, if the trial is not completed the bail should be granted to the accused this single score.
6. The learned Deputy Prosecutor-General assisted by the learned counsel for the complainant has opposed the grant of bail to the petitioner on the ground that he is nominated in the FIR with a specific role of causing injury to Allah Bachaya deceased with .12 bore gun; that the petitioner is accused in challan case as well as the complaint case and that the institution of complaint with somewhat different version does not mean that he was exonerated from the commission of offence in the challan case and no this ground case of grant of bail is made out. Further contends that the petitioner has played a major role in the murder of the deceased Allah Bachaya. The offence falls within-the prohibitory clause of Section 497, Cr.P.C. Therefore, the petitioner is not entitled for the grant of bail.
7. I have heard the arguments of the learned counsel for the parties and have gone through the record. It has been noticed that the petitioner has sought bail on the ground of delay in trial of the case as well as on merits. So far as the delay in the trial is concerned the same has occurred mainly on account of filing of private complaints, one by Muhammad Nawaz complainant and the other by Mst Zahooran Bibi coupled with the fact that on a revision petition (now stands dismissed vide order dated 16.2.2009) filed by Mst. Zahooran Bibi after dismissal of her private complaint, the proceedings in the complaint filed by the complainant were stayed. The petitioner, thus, alone cannot be held contributory to the delay in conclusion of trial. He is in jail since 8.2.2007 and cannot be kept there for an indefinite period without any apparent progress in the trial.
8. Now coming to the merits of the case, prima facie the case of the petitioner falls within the ambit of "further inquiry" because there are three versions available on the record i,e, one given in the FIR, second narrated in the complaint filed by the complaint and the third as incorporated in the complaint filed by Mst. Zahoor Mai and which of these versions is true will be seen at the trial after recording of evidence. There is yet another aspect of the case which makes this case of further inquiry qua the age of the petitioner. According to the "Saza Slip" annexed with the report under Section 173, Cr.P.C. the age of the petitioner is 16/17 years and the complainant has also specificUly mentioned in his application under Section 22-A, Cr.P.C. as well as in his supplementary statement recorded on 28.3.2007 vide Zimni No, 18- Alif that he has got recorded on FIR and the police in connivance with other accused persons and to save their skin, of his own, recorded the FIR on his behalf and involved a minor namely, Sarfraz (petitioner). The co-accused namely, Manzoor Ahmad and Zulfiqar who were nominated in the FIR with a specific role have been found innocent during the investigation and this fact also brings the case of the petitioner within the encompass of 'further inquiry'. The recovery has already been made from the petitioner. He is no more required for further investigation of the case. Therefore, the petitioner is admitted to post arrest bail subject to his furnishing bail bond in the sum of Rs, 1,00,000- (One hundred thousand rupees) with one surety in the like amount to the satisfaction of the learned trial Court.