2026 P Cr. L J 192

 2026 P Cr. L J 192

[Peshawar]

Before Ijaz Anwar, J

MUJEEB KHAN---Appellant

Versus

The STATE and another---Respondents

Cr. M. B.A. No. 585-P of 2024, decided on 15th March, 2024.

Criminal Procedure Code (V of 1898)---

----S. 497---Penal Code (XLV of 1860), Ss. 302(b), 324 & 34---Juvenile

Justice System Act (XXII of 2018), S.6(5)---Qatl-i-amd, attempt to

commit qatl-i-amd, common intention---Bail, dismissal of---Accused a

juvenile at the time of commission of offence but an adult at the

time of his arrest---Allegations against the accused-petitioner were

that he along with others committed murder of complainant, her

husband, son and his sister by firing---Perusal of record would

transpire that accused petitioner had been directly charged in the

FIR by complainant for attempting at her life as well as committing

the murder of her husband, her son and his sister---According to

narration of complainant, they had gone to the house of accused

petitioner for asking the hand of his sister and the occurrence had

taken place inside the house of accused petitioner---Report lodged by

the complainant was in shape of dying declaration as the record

suggested that later that day, she succumbed to her injuries---

Medical evidence in shape of postmortem reports of all the four

deceased (s) supported the prosecution version---Recovery of blood,

blood stained garments of deceased and empties of different bore

from the spot further supplemented the prosecution case---After the

commission of the offence, accused petitioner went into hiding and

remained fugitive from law for 17/18 years---Such long unexplained

abscondance spoke volume of guilty conscience of accused

petitioner and thus, he lost some of his normal rights to seek bail---

Accused petitioner, after his arrest had made pointation of the place

of occurrence---Thus on merits, tentative assessment of the available

record prima facie connected the accused petitioner with the

commission of offence carrying punishment falling within the

prohibitory clause of S.497, Cr.P.C disentitling him to concession of

bail---Allegedly, accused petitioner was a juvenile at the time of

occurrence, as such he was to be treated according to the provisions

of Juvenile Justice System Act, 2018---He had been behind the bars

for a period exceeding the stipulated time provided in the said Act

for release of a juvenile accused on bail in case his trial was not concluded within the stipulated period---Accused petitioner at the

time of occurrence might have been a juvenile, however, it was also

a fact that after commission of the offence he went into hiding---No

doubt, the provisions of the Act ibid provide for grant of bail to an

accused person below the age of 18 years and also for release of

such accused if his trial was not concluded within the time provided

by the law, however, accused petitioner at the time of arrest was no

more a juvenile---If the accused petitioner was arrested right after

the commission of offence or at the age below18 years, then the case

would have been different---Thus, at this stage, the case of accused

petitioner could not be considered under the provisions of Juvenile

Justice System Act, 2018 for the purpose of bail---Trial of the accused

petitioner had commenced and the proceedings were in progress---

Bail application was dismissed, in circumstances.

Awal Gul v. Zawar Khan and others PLD 1985 SC 402 rel.

Taimoor Khan for Petitioner.

Muhammad Riaz Painda Khel, A.A.G for the State.

Mujahid Khan Musazai for the Complainant.

Date of hearing: 15th March, 2024.

JUDGMENT

IJAZ ANWAR, J.---Through instant bail application, accused

petitioner Mujeeb Khan son of Zareen seeks his release on bail in case

FIR No. 42 dated 18.01.2005 registered under sections 302/324/34 P.P.C

at Police Station Tangi, District Charsadda. It is pertinent to mention

here that accused petitioner claims that at the time of registration of

case against him, he was a juvenile and as such has sought his bail on

statutory delay in conclusion of his trial under the Juvenile Justice

System Act, 2018 as well as on merits.

2. In the instant case, accused petitioner along with others has been

charged for committing the murder of complainant Mst. Meher

Angeza, her husband Hameed Ullah, her son Yousaf Khan and Mst.

Sumaira daughter of Zareen by firing at them.

3. Arguments of learned counsel for the parties heard and record

perused.

4. On merits, perusal of record would transpire that accused

petitioner has been directly charged in the FIR by Mst. Meher Angeza

for attempting at her life as well as committing the murder of her

husband Hameed Ullah, her son Yousaf Khan and Mst. Sumaira

daughter of Zareen (sister of accused petitioner). According to

narration of complainant, they had gone to the house of accused petitioner for asking the hand of Mst. Sumaira and the occurrence

has taken place inside the house of accused petitioner. The report

lodged by the complainant is in shape of dying declaration as the

record suggests that later that day, she succumbed to her injuries.

The medical evidence in shape of PM reports of all the four deceased

(s) support the prosecution version. Recovery of blood, blood stained

garments of deceased and empties of different bore from the spot

further supplement the prosecution case. After the commission of

the offence, accused petitioner went into hiding and remained

fugitive from law for 17/18 years. Such long unexplained

abscondance speaks volume of guilty conscience of accused

petitioner and thus, he loses some of his normal rights to seek bail.

In case titled Awal Gul v. Zawar Khan and others (PLD 1985 SC 402),

the august Supreme Court while commenting upon the conduct of an

accused who remained absconder for long period of time held as

under:

"It is also a well-established proposition that unexplained

noticeable abscondence disentitles a person to the concession

of bail notwithstanding the merits of the case-the principle

being that the accused by his conduct thwarts the investigation

qua him in which valuable evidence (like recoveries etc.) is

simply lost or is made impossible to be collected (by his

conduct). He cannot then seek a reward for such a conduct (in

becoming fugitive from law)."

The accused petitioner, after his arrest has made pointation of the

place of occurrence. Thus on merits, tentative assessment of the

available record prima facie connects the accused petitioner with the

commission of offence carrying punishment falling within the

prohibitory clause of section 497 Cr.P.C disentitling him to concession

of bail.

5. It was the contention of counsel for petitioner that accused

petitioner at the time of occurrence was a juvenile and as such is to

be treated according to the provisions of Juvenile Justice System Act,

2018 who has been behind the bars for a period exceeding the

stipulated time provided by the Act ibid for release of a juvenile

accused on bail in case his trial is not concluded within the stipulated

period.

6. "Child" has been defined in section 2 (b) of the Juvenile Justice

System Act, 2018 in the following words:

"child" means a person who at the time of commission of an offence

has not attained the age of eighteen years;  Whereas the preamble of the Act ibid shows that the "Act" has been

made and promulgated for the purpose of providing protection to

children involved in criminal litigation and their rehabilitation in

society. The same is reproduced as under:

"WHEREAS it is expedient to provide for protection of children

involved in criminal litigation, their rehabilitation in society, re-

organization of juvenile courts and matters connected therewith

and incidental thereto"

7. May be the accused petitioner at the time of occurrence was a

juvenile, however, it is also a fact that after commission of the

offence he went into hiding. No doubt, the provisions of the Act ibid

provide for grant of bail to an accused person below the age of 18

years and also for release of such accused if his trial was not

concluded within the time provided by the law, however, accused

petitioner at the time of arrest was no more a juvenile. If the accused

petitioner was arrested right after the commission of offence or at

the age below 18 years, then the case would have been different.

Thus, at this stage, the case of accused petitioner cannot be

considered under the provisions of Juvenile Justice System Act, 2018

for the purpose of bail. The trial of the accused petitioner has been

commenced and the proceedings are in progress.

8. In view of the above, the instant bail application stands dismissed.

JK/171/P Application dismissed.