Accused-petitioner Arshad Iqbal has been refused bail by the learned Judge, Juvenile Court/Sessions Judge, Lakki Marwat in case F.I.R. No,85 dated 7-3-2002 of Police Station Naurang, under sections 302/201/34, P.P.C. And now through the present application, he seeks bail from this Court.
2. The brief facts, giving rise to this application, are that on 7-3-2002, Mumtaz Khan, A.S.H.O., Police Station Naurang along with the police party was on Gasht in the area. On the receipt of information that the dead body of a person is lying on the spot, he proceeded to the spot where he found the dead body of a person whose head was chapped off with both hands cut at wrists. Accordingly, a Murasila was drafted and sent to the Police Station for registration of the case. Later on, the accused-petitioner was arrested and produced before the Judicial/Maga Magistrate and he made a confession, admitting therein to have committed the murder of the deceased at night time in the godown of one Abdul Hamid and after chopping his head off the body and cutting both his hands at wrists, threw the dead body at the spot.
3. Earlier, the accused-petitioner sought his bail but the same was rejected by the learned two Courts below and even by this Court, by an order dated 19-7-2002 on merits. However, now he has moved the present application for grant of bail on the grounds of minor age and delay in the conclusion of his trial.
4. I have heard Mr. Nfamatullah Jamal, Advocate, learned counsel for the accused-petitioner, Mr. Shaukat Hayat Khan Khakwani, learned Deputy Advocate-General for the State assisted by Mr. Gauhar Zaman Khan Kundi, Advocate, learned counsel for the complainant and have also perused the record.
5. The contentions of the learned counsel for the accused-petitioner firstly are that according to the school leaving certificate, the date of birth of the accused-petitioner is 12-5-1985 and on the day of occurrence, he was of 16 years, 11 months and 13 days and if the accused would be, on the day of occurrence, of 18 years less even one day, even then he would come within the definition of child as given in section 2(b) of the Juvenile Justice System Ordinance, 2000 (hereinafter called the Ordinance) and would be entitled to the grant of bail. Secondly; that the accused-petitioner is in continuous custody for about one and a half year and till date, the prosecution has not been able to examine a single witness, as such, on account of delay, the accused-petitioner is also entitled to the grant of bail under subsection (7) of section 10 of the Ordinance.
6. In response, the learned Deputy Advocate-General assisted by learned counsel for the complainant submitted that as the murder of the deceased was committed in a gruesome and brutal manner, therefore, under the proviso to clause (c) of subsection (7) of section 10 of the Ordinance, the accused-petitioner is not entitled to the grant of bail. In this respect, he placed reliance on PLJ 2003 Cr.C. (Lahore) 644. He further submitted that the occurrence took place on the night between 6/7-3-2003 and the prosecution positively submitted challan against the accused- petitioner on 3-4-2003 and since then the accused-petitioner is agitating not only the plea of minor age but constantly applying for grant of bail, as such, the delay, if any, caused in the trial of the accused-petitioner is due to his fault and under subsection (7) of section 10 of the Ordinance, he is not entitled to the grant of bail on this ground as well.
The arguments of the learned Deputy Advocate-General carry weight. No doubt, the Ordinance, being a special law enforced in order to safeguard the rights of children/minors involved in criminal cases who deserve reasonable concession because of their tender age, is to be liberally interpreted in favour of the accused and if the age of such an accused would be one day less than 18 years, he would come within the definition of a child as contained in section 2(b) of the Ordinance and would be entitled to the grant of bail, even if involved in case punishable A with death. In support of this view, reliance is placed on PLD 2002 Karachi 18. However, this concession is subject to the limitations contained in the proviso to clause (c) of subsection (7) of section 10 of the Ordinance under which, if the Court comes to the conclusion that there are reasonable grounds to believe that such child is involved in an offence which, in its opinion, 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, then he would not be entitled to this concession. In the present case, the petitioner is charged for first committing the murder of the deceased by firing at him with a pistol in the godown of one Abdul Hamid and then after chopping his head off and cutting his both hands at wrists, threw his body on the spot which is not only a gruesome and brutal murder, but also sensational in character and shocking to public morality, as such, the accused-petitioner is not entitled to the grant of bail on this ground. This conclusion is not only supported by the clear and unambiguous language of the foregoing provision of law but also by a case reported in 2003 PCr.LJ 1788.
8. Besides, perusal of the record shows that the occurrence took place on 7-3-2003 and the prosecution submitted its challan against the accused-petitioner on 3-4-2003 or in other words, in less than one month of the occurrence but since then, not only the accused-petitioner is continuously applying for bail before the Courts but also agitating his minor age, in the determination of which some time of the learned trial Court was consumed, as such the delay caused in his trial is not the fault of the prosecution but that of the accused- petitioner himself.
Subsection (7) of section 10 of the Ordinance clearly provides that where a Juvenile Court is of the opinion that the delay in the trial of the accused has been occasioned by an act or an omission of the accused or any other person acting on his behalf or in exercise of any right or privilege under any law for the time being in force, such child would not be entitled to the grant of bail. Accordingly, the accused-petitioner is also not entitled to the grant of bail on account of delay in the conclusion of his trial.
9. For the foregoing reasons, this application is without merits and is hereby rejected. However, the learned trial Court is directed to conclude the trial of the accused-petitioner within a period of four months from the receipt of the record, positively.