1984 P Cr (PLP)

B. A. Sheikh for Non-petitioner. Date of institution: 17th February, 1983. By this order, I propose to dispose of both the applications entitled above as they arise out of the same order of the District Criminal Court, Mirpur. Briefly stated, the facts leading to the filing of the above applications are, that Tahir-ur-Rehman, petitioner in bail application, is facing trial under section 415, Islamic Penal Laws Act, 1974 read with section 302, A. P. C. in the District Criminal Court, Mirpur, on the allegation that he, on 17th October, 1981, at about 7 a. m. took Khurshid Ahmed, deceased to the place of occurrence at Kalra in village Darhal Gaggan, Tehsil Bhimber, on some pretext and put him to death by indicting hatchet blows on his head. The motive for the crime is alleged to be the suspicion entertained by the petitioner about the deceased of having illicit intimacy with his paternal aunt, Mst. Azar Begum. The trial Court rejected the application of the petitioner for bail, vide its order, dated 6th February, 1982 against which the petitioner moved this Court for the grant of bail in which one of the grounds put forth for the release of the petitioner on bail was that of the petitioner being below the age of 16 years at the time of alleged commission of offence. In support of the contention that the petitioner was a minor at the time of occurrence the School Leaving Certificate was relied upon while the entries in the Identity Card of the petitioner and Form `B' submitted to, the Registration Department, were relied upon by the prosecution in proof of the age of the petitioner being more than 16 years at the relevant time. But before the judgment in the said application could be written and announced, an application was received from Abdul Karim, father of the deceased, to the effect that according to the record of primary section of High school Darhal Gaggan, the age of the petitioner was above 16 years at the time of alleged occurrence and that the Headmaster of the said school had intentionally suppressed the record of the aforesaid section of the school and had only produced the record pertaining to its middle section. This application was accompanied by a copy of School Leaving Certificate of the peti tioner of the primary section of the school and with an affidavit in support of it. In view of the above application and the fact that the trial Court bad made order on the bail application of the petitioner without ascertain ing the age of the petitioner at the time of his committing the alleged offence, although the minority, of the petitioner was made a ground for his release on bail and evidence about the age of the petitioner was pro duced before it by the petitioner as well as prosecution, I set aside the order of the trial Court rejecting the petitioner's bail application and remanded the case to it with the direction that after taking into consideration the evidence produced by the parties in respect of the age of the petitioner including the School Leaving Certificate pertaining to primary as well as Middle Sections of the School, the age of the petitioner be first determined and then in the light of the said determination and other merits of the case decide the bail matter afresh. The trial Court, in the light of above order, made an inquiry regarding the age of the petitioner at the time of commission of the crime and came to the conclusion that the petitioner was below the age of 16 years at the relevant time, but consider ing the other circumstances of the case, exercised its discretion in refusing bail to him. Now, the petitioner being dissatisfied with the above order of the trial Court, dated 15th February, 1983 has approached this Court for the grant of bail to him while Abdul Karim, father of the deceased, has lodged a revision petition against that part of the order of the trial Court determining the age of the said petitioner to be below 16 years on the day he is alleged to have committed the offence of murder. I have heard the learned counsel for the parties as well as Additional Advocate-General and also gone through the relevant record. I shall first take up for consideration and decision the revision petition lodged on behalf of the father of the petitioner against the order of the District Criminal Court, Mirpur whereby he determined the age of the petitioner. It has been argued by the learned counsel for the petitioner (Mr. B. A. Sheikh, Advocate) that the trial Court by placing reliance on the entries in the School Leaving Certificates of the petitioner for the determination of his age, has discarded the principle enunciated by the Azad Jammu & Kashmir Supreme Court in a case reported as P L D 1978 S C (A J & K) I wherein such entries were held to be of no evidentiary value for the purpose of ascertainment of age of the person. I do not find much sub stance in the above contention of the learned counsel for the petitioner as the ruling cited by him, instead of advancing his case, lends supports to the proposition that the entries in the School Register regarding the age of a person made at the instance of his relative carry great weight and constitute evidence which is difficult to be disbelieved. In this case, the entry in respect of date of birth of the petitioner in the School Record has been made on the information of his father at the time of admission of the petitioner in the school concerned and, as such, is a substantial piece of evidence to be given due weight in deciding the question of age of the petitioner. The above quoted ruling lays down only to the effect that if an entry regarding the date of birth of a person in the school register does not disclose a source of information on which the same is based, then such an entry carries little evidentiary value. But this principle is not applicable in the present case as the date of birth of the petitioner in the school register has been entered on the information supplied by his father and, as such, it cannot be said that the source of information on which such an entry is based, is missing. It has been next contended by the learned counsel for the petitioner that the trial Court has failed to hold proper inquiry about the genuineness or otherwise of the certified copies Of the record of Primary Section of the School, Exhs, P. A. A. and P. A. A./1. There is also not much force in this contention of the learned counsel for the petitioner and I am of the firm opinion that the correct ness of the contents of the above stated documents in respect of the entry regarding the date of birth of the petitioner has rightly been disbelieved by the trial Court as such an entry does not tally with the original record of the school produced before it on the basis of which the said certified copies are alleged to have been issued. In the above certified copies, the date of birth of the petitioner is entered as 12th April, 1964 but the same has been stated to be incorrect by one Muhammad Saleem, Record-keeper of the school concerned, who by producing the original record before the trial Court has deposed that in the original record the date of birth of the petitioner is entered as 2nd February, 1966 and not 12th April, 1964. Thus, in view of the entry regarding the date of birth of the petitioner in the original record, the trial Court has committed no error in not placing any reliance on the entries in the certified copies of the School Leaving Certificates referred to above while determining the age of the petitioner and it cannot be contended that no real endeavour was made by the trial Court to enquire into the correctness or otherwise of the entries contained in the documents Exhs. P. A. A. and P. A. A./1. It may not be out of place to mention here that issuance of copies of the school record which is not true to the original one, is a serious matter to be taken notice of and enquired into by the competent authority of the Education Depart ment so that such a deplorable and unwanted occurrence is not repeated by unscrupulous persons in the said Department. In the circumstances of the case, I am of the view that the entry in respect of the date of birth of the petitioner in the school record is to be relied upon as against the entries in this respect in. the Identity Card of the petitioner or in the Form 'B' submitted to the Registration Department inasmuch as the former entry has been founded on the information of the father of the petitioner whose knowledge about the date of birth of the petitioner is beyond any doubt while the latter entries are made on the basis of informa tion supplied by the petitioner himself or somebody else other than his parents. In this view of the matter, the age of the petitioner has rightly been determined by the trial Court for the purpose of his bail. Now, I would proceed to take up the bail application. It has been contended by the learned counsel for the petitioner that the petitioner's age being less than 16 years, he is entitled to the concession of grant of bail under the proviso of section 497 (2), Cr. P. C. particularly in view of the following circumstances of the case: - (1) That the F. I. R. of the incident has been lodged after the lapse of more than 12 hours, which delay casts suspicion on the truthful ness of the prosecution story. (2) That the names of the eye-witnesses of the occurrence are not mentioned in the F. I. R. and, as such, their testimony is not to be relied upon. (3) That the eye-witnesses are not only closely related to the deceased but are also chance witnesses with the result that no conviction can be based on their evidence. For his above contentions, he has sought support from P L D 1979 Lab. 477, 1980 P Cr. L J 652, 1980 P Cr. L J 600, 1970 S C M R 30, 1972 P Cr. L J 774, 19'70 P Cr. L J

642. Gul Bostam v. Chaman Badshah (1978 S C M R 32) 1969 SCMR 693, 19798 S C M R 109 and PLD 1978 S C (A J & K) 83 (Muhammad Latif v. State). On the other hand, the learned counsel for the State and the com plainant have vehemently opposed the bail application by arguing that the mere minority of the petitioner does not itself entitle him to be released on bail but it still falls within the domain of the discretion of the Court to allow or refuse him bail taking into consideration the circumstances and facts of the case. It is further contended that the material on the record including the role attributed to the petitioner in the commission of offence is such which disentitle him to the grant of concession of bail. In this connection, it is argued that the evidence against the petitioner consists of ocular evidence, recovery of weapon of offence at his instance and the presence of blood stains of the same group as that of the deceased, on his clothes which he was wearing at the time of the incident and were seized from his person by the police at the time of his arrest. After giving my utmost consideration to the arguments addressed at the bar and taking into consideration the material on the record and other facts and circumstances of the case, I am of the opinion that the petitioner, at this stage, does not deserve to be released on bail and the trial Court has committed no error in refusing the same to him. The mere fact that the petitioner was few months below the statutory age mentioned in the aforesaid proviso to section 497 (2), Cr. P. C., is not by itself a ground for freeing him on bail. The proviso under reference is not mandatory in nature but it only vests a competent Court with the dis cretion to let off even a person accused of an offence punishable with death or transportation for life, on bail which discretion is to be exercises judiciously and not arbitrarily by it after undertaking careful appraisal of the facts and circumstances of the case before it. In other words the aforesaid proviso does not bestow a right on an accused person to claim concession of bail and all that it does for the benefit of such accused person is that the handicap imposed by its main section to the grant of bail to him, is removed and it is left open to the discretion of the Court to free him on bail if the facts and circumstances of the case so justify. All the cases cited by the learned counsel for the petitioner where bail was granted to the accused persons on account of their being below the age of 16 years, lay down the rule that the minority of the accused is not per se a ground for the grant of bail but it only takes his case outside the ambit of main section of the Code of Criminal Procedure which imposes ban on the grant of bail to the person accused on an offence punishable with death or transportation for life and enables the Courts to consider his case for bail and grant the same to him if the particular circumstances of the case demand so in the interests of justice. The cases are not lack ing where even the accused persons of very tender age were not given the benefit of concession envisaged by the proviso in question and were refused bail. The cases cited by the learned counsel for the state and the com plainant in this respect are: - (1) 1975 P Cr. L J 1442 (2) 1974 S C M R 163. (3) 1978 S C M R 235 (4) 1977 P Cr. L J 453 and (5) 1977 P Cr. L J 905 Besides this, they have also cited an unreported case of this Court entitled Javed Aslam v. The State, decided, on 20th October, 1982. This being the state of law, now it is to be seen whether or not the discretion in favour of allowing bail to the petitioner should be exercised in the peculiar circumstances of the present case. I am of the view that it does not appear just and proper to allow him concession of bail merely because of his being minor at the time of commission 9f offence. The grounds urged in support of the grant of bail to the petitioner by his counsel, have not impressed me much so as to persuade me to exercise my discretion in favour of granting bail to the petitioner. It is, of course, true that the report of the occurrence has been lodged with the police station after the delay of more than 12 hours but this fact itself is not sufficient to hold the prosecution story so doubtful as to entitle the petitioner to the concession of bail. There is, prima facie, reasonable explanation for this delay on the record as the informant reached the scene of occurrence at about 1 p. m. after coming to know of the incident having taken place and from there he went on foot to police station which is situate at a distance of about 11 miles therefrom. It is a settled principle of law that the F. I. R. is not a substantial piece of evidence, the purpose of which is only to set the Police machinery in motion to investigate the crime reported to it. The other contentions of the learned counsel for the petitioner made for the release of the petitioner on bail such as non-mention of the names of the eye-witnesses in the F. I. R. and their relationship with the deceased besides their being chance witnesses, primarily relate to the appreciation of evidence inasmuch as on these depends the determination of the credibility or otherwise of the eye-witnesses which exercise cannot be undertaken at this stage when the statements of main witnesses have already been recorded by the trial Court. It would not be proper to express any opinion about the credi bility to be attached to the ocular evidence the determination of which should better be left to the trial Court because any opinion by this Court in this respect is likely to prejudice the case of either party one way or the other. The policy of the law relating to bail is to avoid such a possibility and at the bail stage the Court has only to see as to whether or not the material on record, prima facie, connects an accused with the commission of the crime with which he is charged and if there is reasonable ground for believing that the accused has committed the offence, then the bail is barred in cases which are punishable with death or transporation for life. In the instant case, it cannot be said that there does not exist reasonable ground for believing the petitioner of having committed the offence of murder or that any further inquiry in this respect is needed thereby entitling the petitioner to be released on bail. But on the other, hand, there is, prima facie, substantial evidence connecting the petitioner with the com mission of crime of murder. There is ocular account of the incident given by the two witnesses who claim to have seen the petitioner having caused hatchet blows to the deceased resulting in his death. Apart from the above testimony, there is a recovery of weapon of offence from the petitioner at his instance and presence of blood-stains on his clothes alleged to have been worn by him, of the same group as that of the deceased. When the aforesaid evidence appearing against the petitioner is adjudged in its accumula tive effect, there remains no scope for coming to the conclusion about the non-existence of reasonable grounds for believing the petitioner of his having committed the offence with which he is charged and this being the case, I do not feel myself inclined to give the benefit of the proviso to section 49'7 (2), Cr. P. C. which confers discretion upon the Court to enlarge a person-accused of an offence visited by capital punishment on bail. The petitioner is the sole perpetrator of crime of murder who has done to death his victim by ruthlessly and cruelly inflicting on his such a vital part as head, as many as four hatchet blows and thus there appear no mitigating circumstances which may prompt this Court to lean towards exercising its discretion in favour of releasing him on bail' on account of his being only few months below the age of 16 years at the time of alleged commission of offence. For the reasons stated above, the bail application as well as revision petition stand rejected. M. A. K. Petition rejected.