IJAZ AHMAD, Shah, the petitioner seeks the grant of post-arrest bail in case F.I.R. No.755 dated 26- 12-2009, registered under sections 324, 337-F(iv), 337A.(ii), 337-F(ii), 337-A(i), 337-F(i), 148, 149, P.P.C., at Police Station Ludan, District Vehari. Section 302, P.P.C. Was added later on.
2. The allegation is that on the day of occurrence, Fazal Shah, the deceased son of the complainant left home on his motorbike, Jafar Shah, Waris Shah, Qasim Shah, Riaz Shah and Nasir Shah armed with their hatchets and Ismaiel Shah armed with sota appeared at the site. They intercepted Fazal Shah. The petitioner is said to have caused a hatchet blow on the right side of the head of Fazal Shah and another hatchet blow on his left knee. The other accused have also caused specific injuries to Fazal Shah. Fazal Shah was rushed to the hospital. He died in the Nishtar Hospital Multan, on 27-12-2009.
3. It is contended by the learned counsel for the petitioner that Jafar Shah, Riaz Shah, Ismaiel Shah and Nasir Shah co-accused have been declared innocent by the Investigating Officer, that makes the case of the petitioner one of further inquiry; that the petitioner has been declared a juvenile offender, his separate challan has been submitted. He argues that under section 10 of Juvenile Justice System Ordinance, 2000, the petitioner being a juvenile offender is entitled to the, concession of bail after under going detention for one year. He relies on "2010 MLD 948" titled Shabbir Ahmed v. The State, wherein in a case of Qatl-e-amd and robbery, the juvenile offender was granted bail. He also places reliance on KLR 2009 Criminal Cases 135" titled Muhammad Ali v.
The State, and 2009 PCr.LJ 47" titled Mehar alias Mehaar v. The State.
4. On the other hand, the grant of bail is opposed by the learned counsel appearing on behalf of the complainant and the learned DPG. It is argued that the specific role has been attributed to the petitioner; that the petitioner has repeated the injuries that show his intention to cause the death of the deceased; that one of the injuries was caused on the head of the deceased; that in every case where an offender is a juvenile, he does not become entitled for the concession of bail and he may be refused the bail if the Court comes to conclusion that the delay in conclusion of the trial has been caused by some act or omission on the part of the accused. Places reliance on "2010 PCr.LJ 771" titled Muhammad Asim v. The State, and "2007 MLD 1448" titled Muhammad Yousaf v.- Muhammad Shahbaz and another, and argues that where the offence allegedly committed is serious, heinous, gruesome, brutal and sensational in character or shocking to public morality, even the juvenile offender should be refused the concession of bail.
5. I have heard the learned counsel for the petitioner, for the complainant, the learned DPG and have also gone through the record.
6. There is no cavil to the fact that the petitioner has been declared a juvenile, below 18 years of age. The only question that is to be determined in his case is, whether he has incurred any act or omission on his part which has occasioned the delay in conclusion of the trial. The learned counsel for the complainant argues that a lot much delay has been caused on the part of the petitioner in having himself declared a juvenile offender. Had he not made the application, the delay Would have not been caused. This argument is not acceptable. Although an act or omission mentioned in (7)(a) of section 10 of Juvenile Justice System Ordinance, 2000, speaks of an act or omission simplicitor, yet every fair act or forced omission like making of an application for being declared juvenile cannot be termed a factor that caused delay in conclusion of the trial and would render such person disentitled to bail. Such act or omission must be pregnant with the mala fide on the part of the petitioner/juvenile offender. This factor is not present in the case of petitioner. As far the heinousness, gruesome and brutality is concerned, every offence of commission of murder cannot automatically be attached all these attributes. Had it been the case, only the offence should have been mentioned, but here the nature of the offence and the style of its commission is made a condition to refuse the grant of bail which cannot, at this stage, be said with certainty to be present in this offence.
Moreover four of the co-accused have been declared innocent. This takes away some of the credence from the case against the petitioner and makes it a case one of further inquiry. The observations made are however tentative in nature and should not prejudice the trial of the case.
7. For what has been discussed above, the petitioner is granted post-arrest bail subject to furnishing bail bond in the sum of Rs.2,00,000 (two lacs) with one surety in the like amount to the satisfaction of the learned trial Court.