2022 PLP 1806 (SCMR)

Qazi Faez Isa, J. Notice was issued to the complainant and he is in attendance and states that Mr. Shahidullah, Advocate had represented him but he is not an advocate of this Court and requests that he may be permitted to argue his case before this Court as he does not have the resources to engage another counsel. Therefore, we permitted Mr. Shahidullah, Advocate to represent the complainant and to make submissions on his behalf.

2. The learned counsel for the petitioner states that the petitioner was not nominated in the FIR; that statement recorded under section 164 of the Code of Criminal Procedure did not disclose how the petitioner was connected with the crime; that co-accused, namely, Wilayat Khan was granted bail; that the petitioner is no longer required as the investigation is completed and that the petitioner is a juvenile and is entitled to the benefit of subsection (3) of section 6 of the Juvenile Justice System Act, 2018 (the Act'), which is reproduced as under: "(3) Where a juvenile is arrested or detained for commission of a minor or a major offence for the purposes of this Act, he shall be treated as if he was accused of commission of a bailable offence."

3. The learned Additional Advocate General, Khyber Pakhtunkhwa and the learned counsel representing the complainant have referred to subsection (4) of section 6 of the Act, reproduced hereunder: "(4) Where a juvenile of more than sixteen years of age is arrested or detained for a heinous offence, he may not be released on bail if the Juvenile Court is of the opinion that there are reasonable grounds to believe that such juvenile is involved in commission of a heinous offence." They submit that the petitioner attained the age of sixteen years on 12 February 2021 but was arrested after two months and that it is the date of his arrest which is the material date as per subsection (4) of section 6 of the Act and, consequently, the petitioner is not entitled to the benefit of subsection (3) of section 6 of the Act.

4. We have heard the learned counsel and with their assistance examined the documents and examined the provisions of the Act. The Trial and High Courts failed to appreciate the fact that the petitioner on the date of the occurrence, which was 12 February 2021, attained sixteen years of age and that the exception contained in subsection (4) of section 6 of the Act is attracted only if the petitioner was more than sixteen years of age. In this case the petitioner was exactly sixteen years of age on the date the offence was committed. Therefore, the applicable provision of the Act would be its subsection (3) which provides that the petitioner has to be considered as if 'he was accused of commission of a bailable offence' if the offence is one as defined as 'minor or major offence' in the Act, which are respectively offences for which a maximum of three and seven years imprisonment is provided (sections 2(o) and 2(n) of the Act). Neither the learned Judge of the Trial Court nor the learned Judge of the High Court had considered the fact that the petitioner on the date of the commission of the offence was exactly sixteen years of age, and was not more than sixteen years of age, a fine distinction to which the learned counsel for the petitioner has drawn our attention. The date of arrest in a criminal case is immaterial; an accused has to be dealt with under the law as applicable on the date that the crime is committed. Another principle of criminal law which advances the contention of the petitioner's counsel is that if there are two possible interpretations of a provision of the law the one favourable to the accused is applicable, and all the more so when the accused is governed by a special law, which in the instant case is the Act.

5. Therefore, for the consideration of the petitioner's entitlement to bail it needs examination whether he is accused of committing an offence which falls under the definition of a 'heinous offence' (section 2(g) of the Act), however, it is not the prosecution case that it was a 'heinous offence.'

6. In view of the aforesaid and in view of the other points urged by Mr. Zia-ur-Rehman Tajik the petitioner is admitted to bail subject to furnishing bail bond in the sum of one hundred thousand rupees with one surety in the like amount to the satisfaction of the learned Judge of the Trial Court in the case arising out of FIR No. 23 registered on 13 February 2021 (in respect of the crime committed on 12 February 2021) at Police Station Khal, District Dir Lower under sections 302, 324, 212 and 34 of the Pakistan Penal Code. Whilst setting aside the impugned orders this petition is converted into an appeal and allowed in the aforesaid terms. MWA/S-26/SC Bail grante