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Criminal Miscellaneous in Criminal Appeal No. 512 of 1984, decided on 12th October, 1985.

‑‑‑S. 426‑‑Penal Code (XLV of 1860) S. 302/34‑‑Application for suspension of sentence‑‑Accused according to prosecution was not armed with anything‑‑Trial Court while passing judgment, observed that accused was seventeen years old which supported his contention that he was less than fifteen years at time of alleged occurrence‑‑Accused in jail for last sixteen months after his conviction and there was no possibility of his appeal coming up for regular hearing in near future‑‑High Court while exercising discretion, allowed bail to accused in circumstances.

M. Aslam Riaz for Petitioner.

Mian Abdul Qayum Anjum for the State.

The petitioner was named as an accused in a case registered under section 302/34, P.P.C. on 10‑10‑1981 for an occurrence which had taken place on the same day at 2‑00 p.m. One Muhammad Ramzan was murdered in that occurrence. None was injured.

2. The allegation levelled against the petitioner is that he alongwith Muhammad Boota and Muhammad Akram, accompanied by Abdul Mukhtar, armed with a Chhuri had attacked Muhammad Ramzan. It was alleged that Abdul Mukhtar had given Chhuri blows to the deceased while the petitioner had caught him.

3. At the trial, the prosecution witnesses, while clarifying, stated that the petitioner had caught hold of the deceased from the arms.

When the trial was held, Abdul Mukhtar had absconded. Learned trial Judge vide judgment, dated 13‑6‑1984, acquitted Muhammad Boota and Muhammad Akram, at whose instigation the occurrence was alleged to have taken place and convicted the petitioner under section 302, P.P.C. He has been sentenced to imprisonment for life and to pay a fine of Rs.5,000 in default whereof to undergo further R.I. for two years. Half of the fine, on realisation has been directed to be paid to the heirs of the deceased.

4. Motive for the occurrence was that about 3 months prior to the occurrence, tape‑recorder of Muhammad Ramzan was stolen and he had expressed suspicion against Muhammad Boota for the theft of the same.

5. Learned counsel for the petitioner contended that neither in the F.I.R. nor at the trial, any allegation was made against the petitioner, of having come to the place of occurrence, armed with anything; that the only allegation levelled against him was of having caught the deceased; that the accused who was alleged to have given the blows, rather the fatal blows, had absconded and his liability has yet to be assessed; that the petitioner was not more than 15 years of age at the time of occurrence and was granted bail during the trial on the ground of minority.

6. Learned counsel for the State has opposed the grant of bail and contended that the petitioner by catching hold of the deceased had facilitated the murder of Muhammad Ramzan.

7. There is no denying the fact that the petitioner, according to the prosecution was not armed with anything. At the time of passing the judgment, learned trial Judge observed that he was 17 years old. This supports the contention of learned counsel for the petitioner that he was less than 15 years at the time of alleged occurrence, (the occurrence had taken place on 10‑10‑1981, while the judgment was passed on 13‑6‑1984). The petitioner is in jail for the last sixteen months since after his' conviction and there is no possibility of the appeal coming up for regular hearing in the near future.

Keeping in view the facts enumerated above, I feel inclined to exercise discretion in his favour. He shall be released on bail, provided he furnishes bail bonds in the sum of Rs. Twenty five thousand with two sureties each in the like amount to the satisfaction of the Assistant Commissioner, Faisalabad.

M.Y.H./S‑32/L Petition accepted.

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