KHALID MEHMOOD, J.---Petitioner Dilawar has been arrested by the local police of Police Station Khalabat Township Haripur in case F.I.R. No. 337 dated 9-11-2007 for alleged commission of offence under sections 302/452 P.P.C. And F.I.R. No.144 dated 30-4-2008 under section 13, A.O. He applied for post arrest bail before the courts below but the same was declined. Hence, this bail petition.
2. Learned counsel for petitioner argued that at the time of occurrence accused petitioner was minor and is behind the bars since the date of his arrest and about three years and ten months has since been elapsed but the trial has not been concluded due to the reasons that petitioner was declared juvenile prisoner and his trial was ordered to be conducted by the Juvenile Court. But the trial was prolonged due to the reasons that respondent filed petitions before this Court as well as the apex Court, and the trial was stayed on the applications of respondent. The trial has not been concluded due to the conduct and unnecessary litigation agitated by the respondent. He further argued that though petitioner remained absconder for more than ten years but the conclusion of trial within the statutory period is petitioner's unchallengeable right. He relied on the judgments of apex Court reported as "Mitho Pitafi v. The State" 2009 SCM R 299 and "Yaseen v. State"
(2012 YLR 24). It was argued that according to amended law the petitioner deserves to be released on bail.
3. On the other hand, learned counsel for State assisted by learned counsel for complainant opposed the bail petition and contended that accused petitioner has committed heinous crime, which falls within the prohibitory clause of section 497, Cr.P.C. Moreover; he remained absconder for more than 10 years after the occurrence, which disentitle him for the concession of bail. He further argued that the order of the trial Court declaring petitioner juvenile was set aside by the apex Court. The time consumed during the proceedings before this as well as in the apex Court was not due to fault of the respondent rather the same was due to the act of court, hence, petitioner, who remained fugitive from law cannot be benefited. He also argued that after the decision of apex Court prosecution evidence was available at the time of seven hearings before the trial Court but evidence of prosecution was not recorded due to absence of petitioner's counsel.
4. In the instant case occurrence took place on 9-11-1997. Accused/petitioner is directly charged for the brutal murder of Rashid Mahmood in the F.I.R., he remained absconder for more than ten.
Years and was arrested on 30-4-2008. Though petitioner is behind the bars from the last three years and 10 months waiting for the conclusion of trial, but the trial was prolonged due to legal point of juvenile raised by the petitioner. The question that whether petitioner was a minor at the time of occurrence was ultimately resolved by the apex Court and contention of petitioner was rebutted, hence, petitioner could not take advantage that trial was not concluded within two years.
Moreover, after decision of the apex Court prosecution produced their evidence for seven times but could not be recorded due to absence of the counsel of the petitioner. This court cannot ignore the efforts made by the respondent for conclusion of trial and the conduct of petitioner for prolonging it.
5. In view of the prolong abscondence coupled with the conduct of accused petitioner and the nature of crime, it would not be appropriate to release the accused petitioner on bail on the basis of amended law.
6. In view of the above, this bail petition stands dismissed. However, the trial Court is directed to conclude the trial as early as possible but not later than two months on receipt of record and if deemed proper day to day hearing be conducted in the instant case. The office is directed to send forthwith the record of this case to the trial Court.