P L D 1978 Lahore 725 (PLP)

2. Then this petition was filed, no documentary proof regarding the age of the petitioner was placed on the record. 1, therefore, directed that the petitioner be examined by Dr. Mian of Mayo Hospital, Lahore, who should submit his report about his age. This was welcome by the defence counsel. The petitioner was examined by the Radiologist, who vide his report dated 1-12-1977, stated that epiphysis of the medial and left clavicle appeared and the bone age was about eighteen years.

3. After the receipt of the report of the Radiologist. Begum Rehana Sarwar, learned counsel for the petitioner was not happy with it. She, therefore, placed on record the Matriculation Certificate and copy of birth certificate of the petitioner to prove that at the time of the alleged occurrence, the petitioner was a little above sixteen. I may observe here that even the dates in the two certificates do not tally, nevertheless, she submitted that minor discrepancy be ignored and the petitioner be admitted to bail as his cam comes within the proviso to sub. section (2) of section

497. Cr. P. C, which had always been liberally interpreted by the superior Courts, while considering the question of bail in a capital offence. Reliance was placed on Siraj Din v. Saghir-ud-Din (1970SCMR30).

4. The second point on which learned defence counsel laid great emphasis was the injury of the petitioner which had not been mentioned in the F. I. R. According to the learned counsel that proved that the prosecution story was not correct and the truth was otherwise. While developing this point, learned counsel argued that this was not a minor omission but showed that it was the deceased who was the aggressor and that is why the prosecution concealed the injury of the petitioner. The petitioner in the exercise of the right of self-defence inflicted a blow which unfortunately resulted in the death of the deceased. With all the emphasis at her command she submitted that at this stage and for the purpose of bail, this fact can be gone into by this Court. In support of her submission she cited Amir v. State (P L D 1972 S C 277) and Mst. Shafiqan v. Hashim Ali (1972 S C M R 682). Reliance was also placed on Yaqoob v. The State (1977 P Cr. L J 519) as well as on Muhammad Aslam v. The State (1975 P Cr. L J 125). Learned counsel also contended that even motive against the petitioner was not proved, because taking the F. I. R. on its face value, if at all, there was any motive, that was against the co-accused, who had already been admitted to bail by me.

5. Learned counsel for the State opposed this petition and submitted that the bail of the accused had already been dismissed and there were no new grounds to reconsider the matter.

6. I have heard the learned counsel for the petitioner at full length. The points now urged before me had been taken even in the earlier application. Instead of specific plea of age in the first application it had been urged that the petitioner was a student. Similarly, it was also mentioned therein that in the first information report there was no mention of the injury of the petitioner. In addition to this, the defence 'had given a counter version as to how the alleged incident took place, that too was duly considered by me. All the points raised by the learned defence counsel were repelled and the petition was dismissed. That order was not challenged further by the petitioner.

7. In this application the same very points have again been agitated but in a different manner. Dealing with the question of age, I may observe that the word used in the proviso to subsection (2) of section 497 of the Cod is "may", which would not mean that an accused person under sixteen is entitled to the concession of bail as a matter of right. The Question of bail as such is to be considered keeping in view the entire circumstances and of each case. The ratio decidendi of Siraj Din v. Saghir-ud-Din is that t grant of bail in the case of an accused charged with a capital offence between 16 and 17 years, is a matter of judicial discretion, but there must not be excess of irregularity in the exercise of such discretion. I, therefore, do not think that merely on the ground of age, the petitioner can claim bail as a matter of right.

8. So far as the plea of self-defence is concerned, even this was taken earlier, but as already observed by me not in so many words in which ft has now boon urged before me. The decisions referred to above by the learned counsel for the petitioner are distinguishable on account of material difference in the factual position. In the case of Muhammad Aslam v. The State, there was a counter. version and the occurrence had taken place in the fields of the accused party. Hence it became necessary to examine the plea of self-defence even al bail stage. In Yaqoob v. The State, no overt act had been assigned to the accused and fatal blow was attributed to another co-accused. In Amir v. State the case was remitted to the High Court. because all the points had not been considered, whereas in the present case I had given findings on all the points raised by the learned counsel for the petitioner. Mat. Shafiqan v. Hashim Ali was a case where the complainant had moved for cancellation of bail of the accused. That petition was disposed of with the remarks that it would be open to the petitioner to move the Committing Magistrate after some evidence had been recorded.

9. The second application vas moved after going through the order passed by me earlier. It is, therefore, obvious that the petitioner tried to mate out a new case for bail in the light of the findings given by me in the order.1 This, in my view, is not permissible under the law, because the accused cannot' be allowed to repeat his application; such practice being against the principle of finality. Even otherwise it would mean that if an order is passed in favour of an accused, be would accept it, but if it is against him then there will be a second application and so on and so forth ad infinium. Lest I am misunderstood on this point, I would like to make it clear that this does not mean that a second application is not competent at all. It would lie provided there are "genuine new grounds or some now development takes place after the disposal of the first application of an amused" This is not the position in the present case. The petitioner when he came to this Court for the first time bad stated his case in detail. That was duly considered by me and then the bail application was dismissed.

10. For the foregoing reasons, I do not think the petitioner is entitled to the concession of bail. The application is accordingly dismissed. S. Q.??????????????????????????????????????????????????????????????????????????????????????????????????? Application dismissed.