' ABDUL RASOOL MEMON, J.---Applicants Pir Ali and Nazar Ali, both by caste Lanjwani, seek post arrest bail in case Crime No,41/2008, under sections 302, 337-H(2), 34, P.P.C. Of Police Station Kashmore. Earlier the bail plea of the applicants on merits was declined by the learned Additional Sessions Judge, Kashmore vide order dated 07.12.2012. Bail application of applicant Pir Ali moved on 'age ground was also dismissed by the same Court vide order dated 12.09.2013.
2. Briefly, prosecution case is that on 04.3.2008 complainant Noor Khan lodged 'FIR at Police Station Kashmore, alleging therein that on 03.03.2008 he along with his father Hazoor Bux, maternal cousin Muhammad Afzal and cousin Ghulam Rasool went to Kashmore town on two motorbikes. After finishing their work, while returning to the houses when at 1.30 p.m. Reached at the main road near Hira School, saw accused Qalandar Bux and Pir Ali on one motorcycle, while accused Nazar Ali and Ashique Ali on another motorbike, they all were armed with pistols, who on seeing complainant party reaching near to them; came in front and stopped them. Accused by using filthy language told father of complainant Hazoor Bux that he would not be spared as he had been helping the people of his community and by saying so, accused Qalandar Bux made direct fire upon complainant's father, which hit on his chest, Pir Ali (applicant) fired a pistol shot, which hit him on the left side of his buttock, accused Nazar Ali (applicant) fired, which also hit to him and accused Ashique Ali made direct fire on left side of his abdomen, he also repeated shot, which also hit on the left side of his abdomen, resultantly Hazoor Bux raising cry fell down. Then all the accused persons went on their motorcycles. Complainant party took Hazoor Bux to police station and he was referred through letter to Taluka Hospital for treatment but wherefrom he was also referred to Rahim Yar Khan, where he succumbed to his injuries. Thereafter, dead body was brought back to Taluka Hospital, Kashmore and after postmortem examination it was handed over to complainant, then he went to police station and lodged FIR on 04.3.2008.
3. The present applicants were arrested on 02.11.2012, then they were produced in Court with supplementary challan.
4. Mr. A. R. Farooq Pirzada, learned Counsel for the applicants, at the very outset did not press the application of applicant Nazar Ali on merits and stated that he would move on behalf of this applicant to the trial Court for grant of bail on the ground of statutory delay in conclusion of the trial, while he only pressed the bail application of accused Pir Ali on the ground of his minority. He submitted that applicant Pir Ali has been implicated in this case falsely due to previous enmity; that the applicant through medical examination has been proved to be of the age of 18 years and if it is calculated with the time of incident allegedly took place on 03.03.2008, he was aged about of 13 years at the time of alleged incident, therefore, in terms of provisions contained in the Juvenile Justice System Ordinance, 2000, he is entitled to bail, Learned counsel also referred to first proviso to section 497, Cr.P.C. And section 10(7)(a) of the Juvenile Justice System Ordinance, 2000, and submitted that no material has been collected to show that this accused is previously convicted, as such, he cannot be said as hardened, dangerous and desperate Criminal. Lastly, he submitted that mere alleged abscondence of accused would hot debar him from grant of bail as on age ground he is entitled to this concession. In support of his contentions, he has placed reliance on cases of Mitho Pitafi v. The State (2009 SCMR 299), Wahid Bux Khoso v. The State (2006 MLD 507), Afsar Zamin v. The State (PLD 2002 Karachi 18), Sikandar v. The State (2006 PCr.LJ 1648), Mehar v.
The State (2009 PCr.LJ 47), The State v. Mukhtiar Ahmad Awan (1991 SCMR "322) and Syed Qamar Alam v. The State (2014 YLR 497).
5. On the other hand, Mr. Asif Ali Abdul Razak Soomro, learned Counsel for complainant, vehemently opposed the bail plea of accused and relied upon section 10(7)(a) of Juvenile Justice System Ordinance, 2000. On merits learned Counsel submitted that the name of applicant Pir Ali appears in FIR with specific role of causing firearm injury to deceased Hazoor Bux and as per postmortem report, all the injuries sustained by deceased collectively caused death of deceased, as such, he is vicariously liable for the commission of offence and that all the witnesses in their 161, Cr.P.C.
Statements implicated the applicant/accused.
6. Learned A.P.G on behalf of State contended that though the age of applicant Pir Ali is said to be less than 15 years, but he at the time of incident has been attributed active role of inflicting firearm injury to the deceased, thus is not entitled to be released on bail. He, however, admitted the delay occurred in trial of the case.
7. I have considered the submissions made by the parties' counsel and gone through the relevant record. As far as age of the applicant is concerned, the medical certificate issued by Medical Superintendent, Chandka Medical College Hospital, Larkana, placed on record at page No,29 of the file, candidly shows that applicant Pir Ali was of 18 years' on 19.1.2013, when he was examined by the Board of Doctors. In view of the above medical certificate, if the age of applicant Pir Ali is calculated with date of offence, it appears that at the time of alleged incident he was aged about 13 years.
During arguments, it was admitted by the prosecution side that said certificate was not challenged by them anywhere, thus this medical certificate of age of applicant carries weight and his case falls under first proviso of section 497(1), Cr.P.C. Besides this, the certified true copies of the case diaries of the trial Court from 03.11.2012 up to 12.12.2014 filed by learned Counsel for the applicants along with his statement dated 07.4.2014 shows that applicant Pir Ali is continuously in custody and during this period of two years charge was not framed and the delay occurred during this period is not shown to have been on the part of applicant. Section 10(7)(a) of the Juvenile Justice System Ordinance gives statutory right of bail to every child irrespective of nature of offence if he has remained in custody for a continuous period exceeding one year and his trial has riot been concluded. However, a bar is imposed on bail under proviso attached to clause (c) of subsection
(7) of section 10 of the Juvenile Justice System Ordinance, 2000 for the child of 15 years or above, if is involved in an offence, which in the opinion of the Court is serious, heinous, gruesome, brutal, sensational in character or shocking to public morality or he is a previous convict of an offence punishable with death or imprisonment for life. '
8. No material has been brought on record by the prosecution to show if the applicant is a previous convict in any case or dangerous or desperate. A copy of FIR of a murder case registered against applicant at Rahim Yar Khan is placed on record. Mere registration of FIR is no valid ground for refusal of bail until and unless it brought on record that the applicant has been convicted in a case of like nature. Even otherwise, the applicant's case does not come within the ambit of above proviso because the age of applicant as per opinion of the Medical Board he was below 15 years of age at the time of alleged incident.
9. So far ascendance of applicant is concerned, as mentioned above, the applicant Pir Ali has remained in jail for a considerable time of more than two years. Apart from above, in case of Rasool Muhammad v. Asal Muhammad (1995 SCMR 1373), honorable Supreme Court held that disappearance of a person named as murderer/culprit after the occurrence, is but natural, whether named rightly or wrongly. Abscondence per se is not a proof of the guilt of an accused person. It may, however, create suspicions against him but suspicions after all are suspicions. In case reported as Mitho Pitafi v. The State (2009 SCMR 299), the honorable Supreme Court has held that bail can be granted if an accused has good case for bail on merits and mere ascension would not come in way while granting the bail. In view above dictum laid down by the apex Court, mere alleged abscondence of applicant will not come in way of his bail.
10. For the reasons discussed above, I am of the considered opinion that applicant Pir Ali has made out a prima facie case for grant of bail on the ground of statutory delay in trial of the case and his case also does not come within the exceptions provided under section 10(7) of the Ordinance referred above, therefore, this applicant is admitted to bail on furnishing surety in the sum of Rs,300,000/- (Rupees Three Lac only) and P.R. Bond in the like amount to the satisfaction of trial Court.