1992 P Cr (PLP)

(c) Criminal Procedure Code (V of 1898) ‑‑‑‑S. 497(1), first proviso‑‑‑Bail‑‑‑Even if an accused person is not entitled to grant of bail on merits and his case otherwise falls within the prohibitory clause, he can still be granted bail under the first proviso to C 497, Cr.P.C. on the ground of minority (age being less than 16 years), womanhood, sickness or infirmity. (d) Criminal Procedure Code (V of 1898) ‑‑‑‑S. 497/498‑‑‑Bail‑‑‑Law should not be stretched in favour of prosecution and should be liberally construed to provide relief to an accused person who, under the law, is presumed to be innocent till proved guilty. Ch. Muhammad Nawaz Sulchria for Petitioners Badar Munir Malik for the State. M. Azhar for the Complainant. Date of hearing: 5th September 1992. Muhammad Akbar and Shamas Pervaiz petitioners have applied for grant of bail in a case registered against them and 8 others for offences under sections 324/337‑A(ii)/337‑F(ii), 337‑F(2)/452/148, 149, P.P.C. vide F.I.R. No.42, dated 29‑4‑1992 at Police Station Head Marala, District Sialkot.

2. After arguing the petition at considerable length the petitioners' learned counsel prayed that he may be allowed to withdraw the petition to the extent of Muhammad Akbar, petitioner No.l. The prayer is allowed and the petition qua Muhammad Akbar, petitioner No.l is disposed of as withdrawn.

3. As regards Shamas Pervaiz, petitioner No.2 the learned counsel urged that he was below 16 years of age at the time of the occurrence. He pointed out that according to the School Leaving Certificate the petitioner was born on 5‑11‑1976. He placed reliance on the cases of Muhammad Saleem v. State 1985 P Cr. L J 708, Arshad Mehmood v. The State 1979 P Cr. L J Note 15 at Muhammad Anwar v. State 1983 S C M R 1001. He also pointed out that petitioner No.2 did not cause any injury to any P.W., although he was said to be armed with a dagger and was himself injured in the occurrence. The learned counsel for the State and the complainant opposed bail on the ground that Shamas Pervaiz was responsible for the whole episode as he had teased Mst. Lubna Shehzadi daughter of the complainant. Placing reliance on the cases of Javaid Iqbal and another v. State 1991 P Cr. L J 723 and S. Tariq and another v. State 1990 P Cr. L J 653 they urged that the petitioner was not entitled to bail even on the ground of minority:

4. In the cases covered by the first proviso to section 497 of the Cr.P.C., it is discretionary with the Court to grant refuse bail to an accused person. Ordinarily, a‑ Court of law leans in favour of grant of bail to a minor under the age of 16 years, a woman or any sick or infirm person unless there is some compelling reason to. take a different view. There is no hard and fast rule that in cases falling within the ambit of the first proviso, bail must be granted. The discretion has to be exercised by the Court judiciously keeping in view the facts and circumstances of each case. In the present case, the complainant had alleged in the F.I.R. that one day before the occurrence i.e. on 28‑4‑1992, Shamas Pervaiz petitioner had teased his daughter Mst. Lubna Shehzadi but no such allegation was made by Mst. Lubna Shchzadi in her statement under section 161 of the Cr.P.C. Admittedly, the petitioner was below 16 years of age at the time of occurrence. He deserves concession of bail, particularly when there is no allegation that he would either abscond, commit a similar offence F3 or tamper with the prosecution evidence. The argument raised by the learned counsel for the State and the complainant that the petitioner not being entitled to bail on merits is not entitled to bail on the ground of minority has no substance. Even if there be reasonable grounds for believing that a person had committed an offence falling within the prohibitory clause, he may still be granted bail on the ground of minority, womanhood, sickness or infirmity. The learned counsel for the complainant heavily relied on the case of Javaid lqbal and another in which it was held that if an accused person otherwise was not entitled to bail mere minority would not entitle him to the said relief. This view was expressed in the light of the Supreme Court judgment reported as Haji Rahimullah v. State 1970 S C M R

514. In the cited case, Javaid Iqbal petitioner was said to be aged 16 years and 11 months. In the context, the Court was passed to observe that mere minority was no ground to allow bail, when the accused was otherwise not found entitled to bail (on merits). Obviously, it was not a case falling within the first proviso to section 497, Cr.P.C. because the accused, though a minor, was more than 16 years of age bare reading of the provisions of section 497 of the Cr.P.C. makes it clear that even if an accused person is not entitled to grant of bail on merits and his case C otherwise falls within the prohibitory clause, he can still be granted bail under the first proviso to section 497 of the Cr.P.C. on the ground of minority (age being less than 16 years), womanhood, sickness or infirmity. In Haji Rahim ullah's case the Honourable Supreme Court had refused to grant leave to the petitioner who had claimed bail on the ground of old age and illness because the High Court had found him to be quite fit by physical appearance and his disease of `gastritis' was being properly treated in the Jail Hospital. It was nowhere laid down in said precedent that where an accused person was otherwise not entitled to bail, he should not be allowed bail under the first proviso to section 497 of the Cr.P.C. on the ground of minority etc. The law of . bail should not be stretched in favour of the prosecution and should be liberally D construed to provide relief to an accused person who, under the law, is presumed to be innocent till proved guilty. In Muhammad Anwar's case relied upon by the petitioner's learned counsel the Supreme Court was pleased to allow bail by placing reliance on the entry in the school leaving certificate regarding age, genuineness whereof was not questioned by the State. In the present case also, genuineness of the entry relating to the petitioner's age in E the school leaving certificate has not been challenged by the learned counsel for the State or the complainant.

5. For the foregoing discussion and placing reliance on the judgments cited by the petitioner's learned counsel, I accept this petition and allow bail to Shamas Pervaiz petitioner No.2, subject to his furnishing bail bonds in the sum of Rs.1,00,000 (Rupees one lac) with two sureties, each in the amount of Rs.50,000, to the satisfaction of A.C./Duty Magistrate, Sialkoc. N.H.Q./M‑597/L Bail allowed.