' MAZHAR IQBAL SIDHU, J.---Petitioner Anees-ul-murtaza alias Abid was tried separately as juvenile with his co-accused for the commission of murder of Nadeem son of Akbar Khan, the complainant whereas he was convicted under section 322, P.P.C. To pay an amount of Diyat to the legal heirs of the deceased in 36 equal instalments over a span of three years, on the payment of Diyat equal to 06 instalments by the petitioner, he may be released on bail provided his furnishing surety bonds with one surety for the outstanding amount of Diyat and in case of non-payment of remaining amount, he shall be again taken into custody. Now the petitioner oppugned the impugned judgment by way of appeal and has also prayed for suspension of execution of his sentence with the main stay of arguments that petitioner is a destitute and on account of impecuniosity, he has hitherto not paid a single penny of Diyat amount on account of the reasons mentioned above, therefore, he may be released on bail by allowing the instant application as he is in jail since 01.3.2016, the date of impugned judgment.
2. Learned counsel for the petitioner/appellant in support of his arguments while relying upon case titled Abid Hussain and another v. Ghairman Pakistan Bait-ul-Mal and others (PLD 2002 Lahore 482) in Writ Petitions Nos.11242 of 2001 and 6370 of 2002 has further argued that an accused may not be kept in jail for an indefinite period on account of non-payment of Diyat because of his destitution rather he may be facilitated by bringing him out of jail to make arrangements for the payment of Diyat accordingly, in the alternate, Department of Pakistan Bait-ul-Mal, may be directed to make arrangements for the payment of Diyat of the petitioner. It has also been submitted that the provision of section 322, P.P.C. Does not provide servitude/sentence, in this way, if an amount of Diyat is paid even immediate after the pronouncement of the judgment in the same Court, then the accused may be set free and if an accused has no means for the payment of Diyat, then object of the law does not imply that accused may die in jail and thus, has prayed for the acceptance of instant petition.
3. Learned DPP assisted by learned counsel for the complainant has opposed the submissions on the grounds that so far neither the petitioner nor anybody else on his behalf has paid a single penny from amount of Diyat to the legal heirs of the deceased whereas more than six months have elapsed after being pronounced the impugned judgment, after all, the young son of the complainant was murdered and the prosecution has proved its case beyond shadow of reasonable doubts. Further argued that the petitioner has to show his bona fide for the relief prayed but till today not even a single installment is paid and if this practice is allowed then it would amount to open the flood-gate for the accused of commission of murders of identical nature, depicting the current financial situation of the Govt. Exchequer, it would extremely be difficult for the Pakistan Bait-ul-Mal Department to discharge its duties for the payment of such amounts in whole of the Pakistan while petitioner has failed to bring any evidence to prove, prima facie, that he is a pauper, therefore, instant petition may be dismissed.
' Learned counsel for the complainant further supplementing to the arguments of the learned DPP has added that the deceased Nadeem was the lonely son of his parents and assuredly was the high hope of his misadventured family. He was 18 years of age at the time of alleged incident whereas his father, the complainant was septuagenarian. On behalf of the petitioner, no efforts have been made to obey the order passed by the learned trial court. Learned counsel for the complainant has referred to and relied upon the case titled Malik Nadeem v. The State and another (2011 SCMR 1227) wherein the august Supreme Court of Pakistan has declined the prayer of bail to the accused.
4. Heard. Impugned judgment gone through.
5. Centerpiece and the main stay of threnodic arguments upbeat by destitution of the petitioner appear paralogistic and the efforts have been made to fig-leaf the means of the petitioner and his family whereas the court has not noticed straitened financial condition of the petitioner's family by perusing the record. It has been noticed that before the learned Trial court throughout the petitioner was represented by a private learned paid counsel (Mr. Ghulam Mustafa Ch.) and his appeal as well as the instant application has also been filed by the learned private paid counsel.
Co-accused fried separately were also advocated by their private learned counsel. It has also been sussed out from the arguments that petitioner had a joint family system having his parents, brothers and sisters. Throwing of brickbat became the .Cause of death of the deceased and petitioner was tried as a juvenile and extrapolating the expected decision, nothing has been brought on the record as to financial condition of the petitioner. This aspect has also not been brought on record even by the petitioner in his statement recorded under section 342, Cr.P.C. This part of the case on behalf of the petitioner remains in obscurity. Nothing exists to infer famished condition of the family of the petitioner. It remains an old cliched argument of such like nature. The deceased was the high hopes and might stand a burning candle of his family. The court soundly comprehends facilitation of law to foster the cause of justice but at the same time object/motive and intention of the parties to the litigation being justice seekers cannot be ignored. Precedential laws is extremely regarded but the premise and the circumstances do not let the Court to allow the instant petition, at the same time, it is observed that by equanimity the court should keep equilibrium between the parties especially while exercising its judicial discretion, therefore, dissertation of discussed above resulted in declining the desideratum relief, so the application stands dismissed.