1. ' The facts relevant for the purpose of this bail application are that complainant Shahid Hussain had lodged his report at Police Station Quaid-eAbad on 16-7-1992 stating therein that on that day he was informed by one Ashraf that his brother Wahid Hussain alias Malik Sikandar had received firearm injuries when Wahid Hussain/Vas coming to his house after having his meals at Hameedullah Hotel at the hands of applicant Shahid Hussain and co-accused Iqbal, who had fired at Wahid Hussain from a klashnikov. Shahid Hussain immediately went to the place of incident, found that his brother Wahid Hussain alias Malik Sikandar had died and, therefore, he lodged his report. The applicant was arrested on 16-7-1992 i,e, the same day and since then he is in custody.
2. The case has not yet been decided. Application for bail has been rejected by the trial Court and thereafter the present application has been filed with the same request. The learned counsel for the applicant Mr. Fazal Dad Khan has mainly contended that the only ground for grant of bail, which is being pressed before this Court, is that the accused was minor at the time of incident and that this fact coupled with delay in proceedings should be considered favourable for grant of bail to the applicant. On the point of age of the applicant there is a certificate issued by Dr. Bashir Ahmed Shaikh, the police surgeon based on the examination of the applicant by him on 29-5-1993 when he was referred for such examination and certificate by the IVth Additional District and Sessions Judge, Karachi (East). The certificate, which has been based on clinical examination and radiological examination gives the age of the applicant to be between 15/16 years on 29-5-1993.
3. The date of incident is 16-7-1992 and, therefore, by calculation the age of the applicant on the date of incident comes to between 14/15 years at the time of incident according to this age certificate.
4. Another proof of the age of the applicant submitted before the Court is photostat copy of an entry in the Municipal Register of birth, according to which the date of birth of the applicant is 10-7-1979.
5. By calculation, on the basis of the entry in the Birth Register, the age of the applicant on the date of incident comes to 13 years. The learned counsel for the State has opposed the grant of bail to the applicant on the ground that the positive role of causing klashnikov fires on the person of deceased is assigned to the applicant and, therefore, he is not entitled to the grant of bail under the provisions of section 497, P.P.C. Even'on the ground of age he has relied upon a case of Faqir Muhammad v. The State reported in PLD 1989 Kar.
112. In the reported case, accused Faqir Muhammad alongwith others armed with klashnikov and rifles had fired at the deceased Shafiq Ahmed, who had been killed and Bashir Ahmed and other witnesses were injured. The motive was a revenge of a previous murder of the brother of co- accused Altaf Hussain. The age of the applicant Faqir Muhammad was between 15/16 years at the time of commission of the offence. The request for bail in the reported case on the ground of age was refused and it was held that the attending circumstances could not be lost sight of. Since Faqir Muhammad's uncle had been killed and Faqir Muhammad had participated in the crime of avenging the murder of his uncle, the bail was refused as it was held that the Court could not exercise the discretion in favour of the person, who had been assigned the active role of firing at the deceased, having a very strong motive, on the ground of age alone. I am in respectful agreement with the principle laid down in this reported case but as has been observed in this very case that it is an established principle of law that each case is to be decided on its own merits and the circumstances. The circumstances of the present case are at a little variance when the question of delay in concluding the trial is also to be taken into consideration. The applicant is in custody since 16-7-1992 and by now he has remained in jail for a period of 2 years and 5 months.
6. The prosecution has not alleged that the delay in disposal of the case is attributed to the accused.
7. The other cases relevant for taking guidance, for the purpose of deciding this bail application, are
(1) Wazir Khan v. The State reported in 1983 SCM R 427 and Sirajuddin v. Faqir Din alias Goga and another, reported in 1970 SCM R 30. In the first case i,e, 1983 SCM R 427, the delay in commencement of the trial and custody of the applicant for over 2 years has been held to be a good ground for grant of bail while in the case reported in 1970 SCM R 30, age of accused on X-ray examination found to be 16/17 years has been held to be a good ground for bail even in case of capital offences.
8. In this case, therefore, I consider that it shall be proper use of discretion in granting bail to the applicant on the two-fold ground of the age coupled with delay of more than 2 years in the commencement of the trial. It is, therefore, ordered that the applicant be released on bail on furnishing one C surety in the sum of Rs,1,00,000 (Rupees one lac) and P.R. Bond in the like amount to the satisfaction of the trial Court.