1997 PLP 2223 (MLD)

5. On the other hand, Sardar Muhammad Haleem Khan, the learned counsel for the complainant and Ch. Muhammad Mushtaq, the learned Additional Advocate‑General, addressed the following arguments:‑‑‑ (i) that there is a strong prima facie case disclosed by the prosecution against the accused‑petitioner. The accused is nominated in the F.I.R. promptly lodged. All the prosecution witnesses support the prosecution version. The other incriminating material brought by the prosecution, such as medico‑legal report, recoveries etc. also corroborated the prosecution version; (ii) that the points raised by the learned counsel for the petitioner, particularly with regard to the age of the petitioner, are not relevant for the purpose of bail matter as those upon the merits of the case which, in presence of a prima facie case, are not to be gone into. It was also added that the age of the accused‑petitioner is more than the one shown in the certificate as, according to the learned counsel, normally the people get register the age of their children less than the actual age; (iii) that the accused‑petitioner shared the common intention with the other accused, his elder brother, Muhammad Afzal which is shown by the conduct of the accused to have dragged the dead body of the deceased towards a ' Nullah' after the commission of offence; and (iv) that the trial Court after appreciation of the facts and law, disallowed the concession of bail to the accused‑petitioner. The order does nor require any interference by this Court as the same was passed after dud consideration. The learned counsel referred to and cited the following authorities in support of their assertions:‑‑‑ (i) PLD 1982 SC (AJ&K) 100. (ii) PLD 1982 Sh.C. (AJ&K) 104. (iii)1984 PCr.LJ 171. (iv) 1984 PCr.LJ 177. (v) PLD 1990 SC 83. (vi) 1983 PCr.LJ 1965. (vii) PLD 1992 SC (AJ&K) 33.

6. In rebuttal of the arguments advanced by the learned counsel for the complainant and State, the learned counsel for the petitioner addressed further arguments:‑‑‑ (i) That the allegation of dragging the dead body of the deceased was added later on as the said allegation is not found in the F.I.R.; (ii) that all the prosecution witnesses are closely inter se related. There is no independent witness.

7. I have heard the learned counsel for the parties and also gone, through the record. The learned counsel for the petitioner has placed on record the original document, Form‑B issued by the Registration Department and a certificate issued by the Headmaster of Middle School Trar Khel, alongwith an affidavit sworn in by the father of the petitioner, showing petitioner's date of birth as June 14, 1983. The complainant or the State has failed to bring anything on record in contradiction of said documents. The occurrence is alleged to have taken place on February 13, 1996 which shows that the age of the petitioner was 12 years and 8 months, at the time of alleged commission of offence.

8. The accused‑petitioner is alleged to have caught hold of the deceased while the other accused, his elder brother Muhammad Afzal is attributed to have caused knife blow to the deceased at his chest. The age of the deceased at the time of occurrence is shown 23 years who is also shown as stout and healthy. It is not disclosed in the F.I.R. as to how the deceased was caught hold by the accused‑petitioner. However, in the statements recorded later on, under section 161, Cr.P.C., it was disclosed that the deceased was caught hold from the back. The accused‑petitioner was shown empty‑handed and is not shown to have caused any injury to the deceased. None of his clothes were stained with the blood of the deceased, as such, were not recovered while those of the other accused, Muhammad Afzal 'were recovered. According' to the prosecution, witnesses, Mst. Nazira Begum, Mst. Naheed Akhtar, Mst. Mumtaz Begum and Muhammad Ali who are shown eye‑witnesses, and claim to have witnessed, to have taken out the knife by Muhammad Afzal, accused from his pocket, to inflict injury to the deceased. It was also stated by them that the said accused also inflicted fist blow on the face of the deceased as well, before inflicting the knife injury.

9. While considering a bail application under section 497, Cr.P.C. if it appears to the Court that there are reasonable grounds for believing that the accused is guilty of offence punishable with death or imprisonment for life, he shall not be released on bail unless the case is covered by any of the provisos maintained in the section which are (i) any person under the age of 16 years; (ii) any woman; and (iii) any sick or infirm person, but if it appears to the Court at any stage of investigation, inquiry or trial, as the case may be, that there are no reasonable grounds for believing that the accused has committed a non‑bailable offence but that there are sufficient grounds for further inquiry into his guilt, the accused shall be released on bail.

10. The question whether an accused under the age of 16 years involved in a case carrying death penalty or imprisonment for life, is entitled to the grant of bail on the sole ground, attracted the attention of different jurisdictions. The proposition came under discussion before the Supreme Court of Azad Jammu and Kashmir in the case titled ' Shabbir Hussain v. The State PLD 1982 SC (AJ&K) 100' wherein it was held as under:‑‑‑ "‑‑‑S.497, proviso‑‑‑bail in non‑bailable offence‑‑‑Proviso to S.497 enabling Court to release any person under age of 16 years or any woman or infirm person‑‑‑Held, not mandatory‑‑‑Matter within discretion of Court and each case must be considered on its merits. " In another case titled 'Tahirur Rehman v. The State' reported as 1984 PCr.LJ 171, the following observation was made by the Shariat Court of Azad Jammu and Kashmir:‑‑‑ "‑‑‑S.497(2)‑‑‑Penal Code (XLV of 1860), S.302 ‑‑‑ Age ‑‑‑ Mere fact petitioner was few months below statutory age mentioned in proviso to S.497(2), held, not by itself a ground for freeing him on bail ‑‑‑Proviso to S.497(2) not mandatory but only vests a competent Court with discretion to let off even a person accused of offence punishable with death or transportation for life, on bail."

11. Relying upon the authorities referred to above, it may be observed that the proviso to section 497, Cr.P.C. enabling the Court to release any person on bail, under the age of 16 years or any woman or any sick or infirm person, is not mandatory. The word used in the above‑referred section clearly indicates that this matter is within the discretion of the Court and each case must be considered on its merits. It was contended by the learned counsel for the accused‑petitioner in his arguments' detailed above that the matter in the circumstances of the case, requires further probe, as such is of further inquiry. The accused‑petitioner was shown empty‑handed and was alleged to have caught hold of the deceased when his elder brother Muhammad Afzal, accused is attributed to have caused injury after taking the knife out of his pocket which raises following points for le consideration:‑‑‑ (i) Whether a boy of 12‑13 years old can catch hold of a young stout person of the age of 23 years? (ii) Whether an elder brother would expose his younger brother of the age of 12‑13 years to a young person? (iii) Whether the clothes of the accused‑petitioner were likely to be stained with the blood of the deceased in the circumstances when those of the other accused, Muhammad Afzal inflicting knife injury, were stained with deceased's blood? (iv) Whether the accused‑petitioner shared the common intention with the other accused to kill the deceased, particularly in the circumstances when the knife was taken out of his pocket by Muhammad Afzal, accused, at the time of occurrence?

12. It does not require any elaborate discussion that in the circumstances discussed above, it can safely be resolved that the matter requires further probe as to whether the accused actually caught hold of the deceased in the circumstances when the attribution is made to a small boy of 12/13 years old, to have done so for a young grown up person, particularly whether it was really required for the other accused to catch hold for the facilitation of the offence, apart from the fact that the matter requires probe as to whether the accused-petitioner shared the common intention with the other accused when he took out the knife from his pocket. There is no evidence on record supporting the fact of knowledge of the accused‑petitioner for the intention of the other accused to take away the life of the deceased by infliction of knife injury. Therefore, it is safely held that the matter is of further inquiry. Reliance in this regard can also be placed on the case titled Muhammad Khurshid v. The State decided by the Supreme Court of Azad Jammu and Kashmir on March 31, 1985. A similar proposition was also raised in Muhammad Sharif v. The State PLD 1987 SC (AJ&K) 90 wherein it was held as under:‑‑‑ "‑‑‑The appellants are ascribed the role of catching hold of the deceased while the principal accused is alleged to have inflicted injuries on his abdomen. It is not manifest as yet that the alleged weapon of offence (knife) taken out by the principal accused abruptly, was within the knowledge of the appellants. It cannot, therefore, be said with certainty at this stage that the appellants were aware of the fact that the principal accused was armed with a knife. The appellants acted in pre-concert, neither it could be inferred that the accused‑appellants had any knowledge that co‑accused (principal accused) had a knife on his person. In order to saddle the appellants with the responsibility of sharing common intention as envisaged under section 34, A.P.C., there must exist some evidence on record from which it could be inferred that these accused were aware of the fact that the main culprit, had a knife on his person." Reference may also be made to the case title Shahid Iqbal v. The State 1976 PCr.LJ 758 wherein it was laid down as under:‑‑‑ "‑‑‑Section 497‑‑‑Bail‑‑‑(Murder case)‑‑‑A solitary blow allegedly inflicted on deceased by co‑accused while petitioner held deceased by arm‑‑‑Question whether petitioner secured deceased by arm needing further inquiry‑‑‑Petitioner admitted to bail, in circumstances of case. " The case of 'State v. Matloob Hussain Shah 1983 PCr.LJ 745, can also be referred in support of the proposition in hand wherein the following observation was made by the Supreme Court of Azad Jammu and Kashmir:‑‑‑ "‑‑‑The only allegation against the respondent is that he held the deceased before he was fired at by Ibrar Hussain Shah. It is yet to be determined as to whether the position in which the deceased was held, Ibrar Hussain, accused could safely hit at the deceased ignoring the fact that the fire may hit his father Matloob Hussain Shah, respondent accused. It also makes us to believe that it is yet to be seen by the trial Court whether it was at all necessary for the respondent to have held the deceased because it will not have taken more than a second in inflicting the fire injury to the deceased. The question, therefore, whether the respondent in reality did secure the deceased in the circumstances of the case needs further inquiry. "

13. It may also be added that bail is not to be refused merely on the allegation that a person has committed an offence punishable with death or imprisonment for life unless reasonable grounds appear to exist to disclose his complicity. The wisdom behind it is that if the accused in the circumstances of the given case is finally acquitted, how could he be compensated for his detention during the trial, therefore, law allows concession of bail to such a person. Reliance in this regard is place on PLD 1983 SC (AJ&K) 9.

14. Keeping in view the tacts discussed above and their accumulative effect, particularly in the light of age of the accused‑petitioner, nature of allegation attributed to him and the other circumstances of the case, such as accused‑petitioner being a student of VIII Class, the bail application is accepted, setting aside the order of the District Criminal Court, Pallandri. The accused‑petitioner shall be released provided he furnishes bail bond in the sum of Rs.5,00,000 with two sureties and personal bond in the like amount to the satisfaction of any Magistrate 1st Class, Pallandri. The authorities i.e. PLD 1982 Sh.C. (AJ&K) 104, 1984 PCr.LJ 177, PLD 1990 SC 83, 1983 PCr.LJ 1965 and PLD 1992 SC (AJ&K) 33, with their distinct facts, are not applicable to the case in hand, as such are not discussed. N.H.Q./27/Sh.C/(AJ&K) Bail allowed.