WAHEED alias NAHEED vs The STATE and another

ORDER

' RAUF AHMAD SHEIKH, J.---The petitioner seeks post-arrest bail in case F.I.R. No,428 of 2009 dated 14-12-2009 under sections 302/34, P.P.C. Police Station Kundian District Mianwali.

2. Briefly stated the prosecution version as embodied in the F.I.R. Recorded on the statement of Muhammad Ameer complainant is that on 14-12-2009 at about 10-30 a.m., in the area of Adda Goley Wala District Mianwali, the petitioner while armed with firearm along with his co-accused made an attack on the complainant and his brother. Allegedly, the petitioner made two fires which landed on the chest and right flank of the deceased.

3. The learned counsel for the petitioner has contended that there is material contrast between ocular account and the medical evidence as according to the witnesses, the petitioner had made two fires which landed on the chest and flank of the deceased whereas the post-mortem report shows that he had sustained only one injury and second one is an entry wound. It is further contended that the petitioner is behind the bars w.e.f, 9-2-2010 but no substantial progress has been made towards conclusion of the trial and that the petitioner is not responsible for this inordinate delay. It is also urged that the petitioner is non-convict previously.

4. The learned D.P.G. And the learned counsel for the complainant have vehemently opposed the petition. It is contended that the petitioner is specifically nominated in the F.I.R. He has taken the life of an innocent person due to previous animosity; that he remained fugitive from law and that the complainant is also not responsible for delay which was result of proceedings of the court in respect of the contention raised by the co-accused for his separate trial under the Juvenile Justice System Ordinance, 2000.

5. The petitioner was arrested on 9-2-2010. It is true that an order was passed for issuance of proclamation on 18-1-2010 but he surrendered even before expiry of the period of 30 days as required under section 87 Cr.P.C. So he cannot be deemed to be a proclaimed offender. The perusal of order sheet reveals that only on 21-12-2011, adjournment occurred due to request of his learned counsel. All remaining adjournments took place due to non-availability of the P. Ws. Or the strike of learned Members of the Bar for which the petitioner cannot be held responsible by any stretch of imagination. Admittedly he does not bear history of involvement in any criminal case in the past and is non-convict previously. The contention that he repeated the fires is also against the medical evidence. Even if he is held responsible for causing delay of four days, he has already spent more than 2 years, 4 months and 14 days behind the bars. He is not a desperate, dangerous and desperate offender. The trial is still at initial stage and only four formal witnesses have entered witness-box. In these circumstances, no ground is available to withhold the concession of bail on statutory ground, available under the 5th Proviso of section 497(1), Cr.P.C. As amended through Act, VIII of 2011.

6. For the reasons supra, the petition is accepted and the petitioner is granted post-arrest bail subject to his furnishing bail bonds in the sum of Rs,3,00,000. With two sureties in the like amount to the satisfaction of learned trial Court.