2006 PLP 406 (MLD)

ABDUL SHAKOOR PARACHA, J.

Ghulam Qadir, petitioner, who claims himself to be a child within the meaning of section 2(b) of the Juvenile Justice System Ordinance, 2000 seeks post-arrest bail in the registered against him and his co-accused vide F.I.R. No.125, dated 5-6-2003 under sections 302/324/34, P.P.C. at Police Station Mandra, District Rawalpindi.

2. Brief facts of the case are that on 5-6-2001 at 9-25 p.m. Khurram Shahzad complainant along with his companions reached at Noor Wasla in order to see Kubadi Match. At about 5-30 p.m. Muhammad Usman and Muhammad Ahmad were already present there and at 6-20 p.m. when the Kabudi Match was finished and the complainant along with his companions were going back to their respective homes, suddenly petitioner armed with Churri along with other co-accused armed with .30 bore pistol reached there. Muhammad Azam fired at Iftikhar which landed on his head and he fell down. Shahid fired with his pistol which hit Muhammad Usman on his right foot. Then Suhrab armed with Carbine and Faisal armed with pistol started firing. Ghulam Qadir gave Churri blow which landed on the left chest and right thigh of Muhammad Usman, Sadaqat gave a Churri blow which landed on the chest of Muhammad Ahmed. Iftikhar lost his life and consequently the case was registered. Petitioner applied for grant of post-arrest bail before the learned Additional Sessions Judge Gujjar Khan which has been declined to him vide order dated 18-6-2004, hence this petition.

3. Learned counsel for petitioner contends that the petitioner is a child within the meaning of section 2(b) of the Juvenile Justice System Ordinance, 2000, on the basis of birth certificate, as well as school leaving certificate; Juvenile Court has recorded finding after inquiry and the medical report submitted by the Medical Superintendent District Headquarter Hospital, Rawalpindi dated 29-4-2004, his bony age is approximately 17-19 Years. Further that the petitioner was arrested on 16-6-2003 and has been detained since last 14 months and the petitioner cannot be awarded punishment of death under section 12 of the Juvenile Justice System Ordinance, 2000. In view of the fact that he, is a child therefore, the petitioner is entitled for the bail as of right on the mandate of section 10(7) of ibid Ordinance. He has placed reliance on the cases reported as Asghar All v. That State (2002 MLD 1566), Afsar Zamin v. The State (PLD 2002 Karachi 18). Further that the petitioner also received fire-arm injuries and the injuries were suppressed by the complainant party and it is a case of two versions and it is yet to be determined that which party was aggressor. Petitioner has not been attributed and injury to the deceased whereas he has been attributed only simple injury with Churri to. P.W. Muhammad Usman.

4. On the other hand, bail has been opposed by the State Counsel assisted by the learned counsel for the complainant on the ground that the petitioner is not entitled for the bail under proviso of subsection (7) of section 10 of the Juvenile Justice System Ordinance, 2000. Charge was framed against him and one witness has been recorded; F.I.R. is promptly lodged with specific role. Petitioner along with all other co-accused while armed with deadly weapons initiated attack and one man lost his life and witnesses have been injured. Each accused is liable for the acts of other. The offence being serious, heinous, gruesome, brutal, sensational in character, therefore, petitioner is not entitled for the bail.

5. I have heard the arguments of the learned counsel for parties and perused the record with their assistance. Petitioner is claiming bail being child as defined in section 2(b) of the Juvenile Justice System Ordinance, 2000. On the mandate of section 7 of the Ordinance ibid whenever a question of age of an accused persons is raised or arises, he must be subjected to a medical test unless strong reasons existed or could be offered for not doing so. See case of Sultan Ahmad v. Additional Sessions Judge-I, Mianwali and 2 others (PLD 2004 SC 758). Apart from the fact that the petitioner is a child on the basis of school leaving certificate, he has been declared so by Medical Superintendent District Headquarter Hospital, Rawlapindi, vide his report dated 29-4-2004 which has not been disputed by the learned counsel for respondent. Clauses (a) and (b) of subsection (7) of section 10 of the Juvenile Justice System Ordinance, 2000 are applicable to his case. Under section 12 of the ibid Ordinance, punishment of death to a child had expressly been barred/excluded. In section 10(7)(a) of the ibid Ordinance, it has been laid down that a child ,facing a case punishment with death can be allowed concession of bail when accused has remained in custody for more than one year. In case reported as Asghar All v. The State (2002 MLD 1566) accused who was aged 17 years, 7 months and 4 days as per entries in school leaving certificate on the date of incident 7-9-2001 was granted bail. Juvenile Justice System Ordinance, 2000 is aimed and extending protection to the children involved in criminal litigation and their rehabilitation in the society. Ordinance safeguards the human rights of a section of society who deserve reasonable concession because of their tender age and therefore it is to be construed liberally in order to achieve the said object. Reliance is placed on-Afsar iamin v. The State (PLD 2002 Karachi 18). In case reported as Mansoor Ahmed and others v. The State (2002 PCr.LJ 657), while interpretating the provision of section 2(b) and section 10 of the Juvenile Justice Ordinance (XXII of 2000), it was held that, "documentary evidence brought on record had indicated that the age of the accused was not above 17 years at the time of commission of offence and he being minor had remained in custody for a period of more than nine months. Under section 10(7)(b) of the ibid Ordinance, a child in case of offence punishable with imprisonment for life was entitled to bail. Learned counsel for petitioner contends that proviso to section 10(7) does not bar the Court to grant bail to the petitioner. To my mind, the proviso does not control subsection (7) of section 10 ibid Ordinance.

6. For what has been discussed, this petition is accepted. Petitioner is allowed bail subject to his furnishing bail bonds in the sum of Rs.1,00,000 (Rupees one lac) with one surety in the like amount to the satisfaction of the trial Court. H.B.T./G-170/L?????????????????????????????????????????????????????????????????????????????????????????????? Bail granted.