1. Through this application under section 497, Cr.P.C. Inam Ullah petitioner has prayed for grant of bail to him in a case registered against him under section 302/307/333/353/34, P.P.C. Recd with M.L.R No.9. The case was registered against the petitioner and his co-accused on the complaint of Abdul Rashid complainant, vide F.I.R. No. 564. Dated 25-9-1983 with P.S. Cantt. Rawalpindi.
2. The allegations contained in the F.I.R. Are that on 25-9-1983, at about 7-15 p.m. Constables Abdul Rashid Gild Hasnain Shah (since deceased) were proceeding towards Bakri Chowk when Muhammad Arif P.W. Told them that the petitioner Inam Ullah and the co-accused Nasir Khan and Asghar Khan were standing near the Railway quarters and each one of them was armed with a flip knife. Upon this Hasnain Shat deceased F.C. Asked the petitioner Inam Ullah and the co-accused to stop when Asghar Khan co-accused warned him not to come near him but the deceased Hasnain Shah made an attempt taw capture Asghar Khan accused who inflicted a knife blow on the right side of the abdomen of the deceased. Nasir Khan co-accused caught hold of the deceased from behind when Asghar Khan accused gave another knife blow on the forearm of Hasnain Shah deceased and in the meantime the petitioner Inam Ullah also inflicted a blow with knife on the back to the deceased. The case was registered with Police Station Cantt Rawalpindi under section 307/34, P.P.C. On 25-9-1983. On 29-9-1983 however, Hasnain Shah injured died as a result of the injury inflicted upon him by Asghar Khan accused in his abdomen when the offence --under section 307/34, P.P.C. Was converted to section 302, P.P.C The case was first sent up for trial by a Special Military Court but a later it was transferred to the ordinary criminal Court. The petitioner was enlarged on bail under orders of the Matial Law authorities till the, case was remitted for trial by the ordinary criminal Court.
3. The petitioner and his co-accused Nasir Khan made an application for bail to the learned Additional Sessions Judge, Rawalpindi, who-by his order dated 13-6-1984, allowed bail to the co- accused Nasir Khan, but rejected the bail application of the petitioner. Hence the-present petition.
4. The learned counsel for the petitioner contended: (i)that the petitioner was a minor and a student and as such entitled to be released on bail; (ii)that there is no arrangement in the Rawalpindi jail for detention of a juvenile offender and as such the detention of the petitioner in jail with other hardened criminals would adversely affect character and nature of the petitioner who is a student against whom the allegation only is that he inflicted the ;injury on the person of the deceased which was a simple injury only and the death was riot caused on account of the injury attributed to him.
5. The learned counsel placed reliance in support of the above two contentions on Arshad Mahmood alias Ashraf and 2 others v. The State reported as 1979 P Cr. L J Note 15 p. 11.
6. The learned counsel also placed on record today certificate from the Federal Government Middle School, Rawalpindi to show that the petitioner Imam Ullah was a student of the said school at the time of the alleged occurrence.
7. The learned counsel has today also filed a copy of the judgment of the Supreme Court of Pakistan in Cr. A. 'No. 18 of 1974 titled Mohi-ud-Din v. The State and another in support of his contention that (here are no arrangements for detention of juvenile under-trials separately and that, in similar circumstances, the Supreme Court of Pakistan allowed bail to the petitioner in the said appeal.
8. (i.e)that despite lapse of a long period of about ten months the challan has not so far been submitted in the Court and as such there are no chances of the commencement of the trial in the remote future even; (iv)that during the investigation conducted by the Additional Superintendent of Police out of the 20 witnesses who were examined by him 16 have not implicated the petitioner and some of them have categorically stated that the petitioner was in the mosque at the time of the alleged occurrence; The learned counsel further submitted in this connection that although the complaint was lodged by a stranger who admittedly did not know the petitioner yet he had been named in the F.I.R. Which shows premeditation to name him before lodging the report.
9. On, the other hand, the learned counsel appearing for the State submitted that the injury was caused by the petitioner on the back of the, neck which was a vital part. He, however, had to concede that the injury described in the Medico-Legal Report and the post mortem report is an incised wound 2 centimetre in length on the part of the lower part of the neck.
10. The learned counsel for the State next contended that the weapon of offence viz. Knife used by the petitioner was recovered at his instance.
11. Lastly the learned counsel for the State submitted that the petitioner is specifically named in the F.I.R. And a specific role has been attributed to him of having inflicted an injury on the person of the deceased.
12. Having given consideration to the controversy involved I am of the view that the contentions raised on behalf of the petitioner have force. By production of the school certificate and the birth report copy it has been shown that the petitioner was a student at the time of the alleged occurrence and was a minor of about 15 years of age. It has also been shown from the Medico-Legal Report and the post-mortem report that the injury attributed to the petitioner was an incised wound A 2 centimetre in length and was not the-cause of death of the deceased. It has also been established from the F.I.R. That this was the last injury inflicted on the deceased. That being so, the authority cited by the learned counsel for the petitioner and reported as 1979 P Cr. L J Note 15, p.11 applies squarely to the facts of this case. There is no motive attributed to the petitioner for the commission of the crime nor the occurrence has been shown as the result of premeditation between the accused.
13. It may also be observed that I specifically asked the learned counsel for the State as to whether arrangements for detention of a juvenile offender are now available in Rawalpindi jail or not to which he replied that he can neither affirm nor deny the assertion of the learned counsel for the petitioner. On the contrary the learned counsel for the petitioner had stated at the Bar that there are no arrangements till date in Rawalpindi jail to the above effect. That being so, the principle enunciated in the judgment of the Supreme Court of Pakistan, a copy of which has been placed on record today, that it would not be in the i0terest of justice to keep a juvenile offender in the ordinary judicial lock-up for an indefinite length of time also applies to the facts of the case in hand.
14. Yet another factor which has prevailed with me to allow bail to the petitioner is the admitted position that despite lapse of about ten months the challan has not so far been submitted in the Court and, therefore, it cannot be ruled out that the trial will commence after quite a long time. It is the established principle that bail cannot be withheld for an indefinite period of time as it is not intended to be a punishment.
15. It is also worth mentioning here that it is the admitted position that even the re-investigation conducted by the Additional Superintendent of Police during which investigation statements of independent persons had been recorded most of whom not only did not implicate the petitioner but also asserted that he was in the mosque at the relevant time had concluded on 30-10-1983 yet the challan has not been submitted in the Court.
16. I also asked the Investigating Officer as to why the challan has not been submitted in the Court despite the fact that the Investigation had concluded even for the second time as far back as 30- 10-1983. C There is no explanation forthcoming for the inordinate delay in keeping the challan away from the Court. I have noticed that the submission of challans in the Courts is unnecessarily delayed by the Police which affords a ground for bail to the accused. By this conduct of the Police in submitting challans in Court belatedly I have gained the impression that the Police itself is in league with the accused facilitates the obtaining of bail by the latter from the Court. This is not the first case which has come to my notice herein which the challan is being withheld from the Court inordinately.