1968 P Cr (PLP)

Date of hearing: 9th February 1967. The State has applied through the learned A. A.G. for cancellation of the bail granted to the respondent Muhammad Malook by the learned Sessions Judge, Jacobabad on the 30th November 1966. Some facts of the history with regard to the pre vious bail applications made by this respondent are set out in the order of the learned Sessions Judge, Jacobabad but it is necessary to detail a few of the other circumstances of the case.

2. The incident and the offence arising therefrom in regard to which the respondent Muhammad Malook and his co‑accused Khan Muhammad, have been challaned, took place on 2nd of October 1966 when at about 10‑30 p.m. the complainant Chatomal sitting in his office as Chairman of the Union Council, was informed by one Kalyanomal that Chatomal's brother Lachookmal had been given knife injuries by the respondent accompanied by two others, resulting in the male organ of Lachman being almost entirely severed from its roots, and hanging from the shred of its skin. Chatomal reached the scene and saw his injured brother bleeding from the injury, which appeared to have been inflicted with a razor, and was informed by the injured that after closing his shop he was counting his day's earning, when he was accosted by the respondent, Khan Muhammad and one other person, whom he could not identify, that respondent Muhammad Malook was armed with a razor with which he attacked Lachman, and with the assistance of Khan Muhammad almost severed his penis. Chatomal filed a report within half an hour of the incident at the Kashmore Police Station, and in the course of the investigation, Muhammad Malook respondent was arrested the next morning. A counter‑report is also alleged to have been lodged with the Police by Khan Muhammad in respect of the same incident, and it is stated that that case has also been challaned. In the R & P that have been submitted to this Court, it appears that the F. I. R. named Muhammad Malook and Khan Muhammad as two of the three assailants of Lachman. Muhammad Malook was arrested on 3‑10.66. Muhammad Malook and Khan Muhammad were challaned before the learned S. D. M., Khandkot. The R & P further shows that on the same day, namely 18‑10‑66, an applica tion for bail was presented to the Sessions Court. On this applica tion the office noted that no previous application for bail had been filed on behalf of Muhammad Malook. It is not clear whether the Sessions Judge, Jacobabad, attended Court that day or not, but below this application by Muhammad Malook and Khan Muhammad the learned Additional Sessions Judge passed an order granting interim bail to both the applicants, each in the sum of Rs. 5,000 with notice to the P. P. fixing the hearing of the matter for 21‑10‑

66. Both the accused furnished bail and were accordingly released. The record further shows that a notice dated 20‑10 1966 was issued to the P. P., Jacobabad signed by the Serishtedar of the Sessions Court calling upon him to appear before the 16arned Sessions Judge "for the confirmation of the interim bail on 21‑10‑66 at 8‑15 a .m." There is nothing on the record to show whether this notice was served on the P. P. or not. Nevertheless, an order on page 29 of the record of the learned Sessions Judge, Jacobabad, dated 21‑10‑66 appears, wherein he refers to the facts of the prosecution case against Muhammad Malook and Khan Muhammad being of the view that a heinous offence prima facie appeared to have been committed, the punishment for which was severe, and without prejudice to the merits of the case, he ordered that the interim orders granting them bail be vacated, consequently remanding both the accused to custody. A later order dated 30‑11‑66 states the circumstances in which it was passed, in that on 7‑I1‑66, the learned Sessions Judge visited to Kandhkot Sub‑Jail in the course of which inspection "wherein three children" were found as under trial prisoners complaining against conditions in which they were living, and on account of which "I asked them to send their petitions through the Superintendent of the Jail, when those will receive consideration." Consequently, respondent Muhammad Malook submitted a petition through the Superintendent of the Judicial lock‑up at Kandhkot, which was forwarded to the learned Sessions Judge for necessary action on the 7th of November, the same day 'on which the learned Sessions Judge visited the jail. Thereafter notice was issued to the D. P. P. who appears to have been heard before the order dated 30‑11‑66 was passed. The learned Sessions Judge went on to state in this order that when he cancelled the bail of Muhammad Malook he did not notice a circumstance, which appeared to him later that he found him to be a child. Muhammad Malook was therefore ordered to be examined by the Civil Surgeon of Jacobabad, who certified him to be about 17 years of age. Then the learned Sessions Judge went on to discuss the Probation of the offenders Ordinance, 1960 and the Sind Children Act, 1955 and the implications of the expression "youthful offender" and on the basis that there was always a margin of error of at least two years on either side in medical opinion expressed with regard to the age of a person, the benefit of which must go to the accused, and referring to the provisions of subsection (1) of section 497, Cr. P. C. in that any person under the age of 16 years or sick or infirm person may be released on bail, Muhammad Malook's bail was ordered.

3. I have been taken through the record and proceedings of the case with the assistance of the learned A. A.‑G. and there are certain matters of propriety which should be referred to. Firstly there is nothing to show how and why the original application of Muhammad Malook and Khan Muhammad came to be placed before the learned Additional Sessions Judge, Jacobabad, when ft should have been placed before the learned Sessions Judge. Then since the learned Additional Sessions Judge had ordered that notice should issue to the P. P., and as it is not clear on the record, whether notice was in fact served on the P. P. or not for appearance on the 21st of October, the order of the learned Sessions Judge dated 21‑10‑66 cancelling the bail of Muhammad Malook and Khan Muhammad does not state whether the learned P. P. or the learned counsel for the accused were heard at the time. Nevertheless, the outstanding circum stance is that since the previous order of interim bail had been granted by the learned Additional Sessions Judge the matter should have been heard and decided by him and, in any case, the counsel for the accused and the learned P. P. should have been heard before the learned Sessions Judge passed the order of 21‑10‑66.

4. The next aspect is that neither the provisions of the Probation of Offenders Ordinance, 1960, nor the Sind Children's Act of 1955 apply to this case. The Ordinance was meant to apply and to provide for the release on probation of certain offenders in certain cases and matters, but primarily in the case of those persons who had been tried and convicted, acid not those undertrial. Under section 5 of this Ordinance, a male person con victed of an offence, not being offences stated in subsection (a) of section 5 or of an offence punishable with death or transportation for life, could be considered for purposes of a probation order. The next aspect is that tire Sind Children's Act XII of 1955 was published on 11‑7‑

55. The integration of the Province of West Pakistan came about in October 1955. Section 2 of this Act stated that section 1 in referring to the Act called the Children's Act of 1955, shall come into force at once, but the rest of the Act or arty provisions thereof should come into force in any area only on a date as the Provincial Government may by notifica tion in the Gazette, specify. The learned Additional Advocate- General concedes at the bar that the Provincial Government have not fixed a date nor issued a notification by which this Act could be said to come into force. The reference to both these Acts, therefore, was of no avail to the learned Sessions Judge in considering the case of Muhammad Malook. It is therefore urged that under these two Acts referred to by the learned Sessions Judge, the respondent was neither entitled to any protection and, therefore, nor to bail pending the proceedings against him.

5. These are the facts in the background. After the present application was made by the State, Muhammad Malook has been examined by the Civil Surgeon of West Pakistan Government Hospital who has opined that he is about 15 years of age, and it is now for consideration whether in the circum stances the application for the cancellation of his bail should or should riot be granted.

6. Muhammad Malook who is now before ms appears to be a youth, and there is divergence of opinion between the Civil Surgeon of Jacobabad and Karachi as to his age. To me, Muhammad Malook appears to be between 16 and 17 years of age. The strong circumstances as urged by the learned A. A.G. is that the crime committed is per se a very serious one in which as has been stated at the earlier stage this young man armed wit a razor allegedly cut off a very vital organ of Lachmandas and was assisted in this act by Khan Muhammad. I consider the this is a matter in which bail should not have been granted and I, therefore, set aside the order for bail and remand Malook to custody. It is, however, necessary in the circumstances to further order that Malook should be kept in the District Jail at Jacobabad the authorities that be giving due consideration to his complaint made from jail that being a young man he was being pestered by other prisoners at night. I also order that the trial Court should proceed with this case expeditiously and that it should be heard and decided within the next three months. Muhammad Malook is present in Court. He is remanded to custody, for the present to the Central Prison, Karachi, from where he should be sent to Jacobabad to be produced before the S. D. M., Kandhkot. Record and proceedings to be returned.

7. I have given this matter my serious consideration, and I feel that from several points of view, the explanations of both the learned Sessions Judge and the learned Additional Sessions Judge be obtained in reference to the remarks I have made in this order. These explanations will be submitted within the next fortnight, and should be put up before me after they are received. Order accordingly.