1999 PLP 348 (YLR)

Muhammad Sayal, petitioner has brought the present petition for the cancellation of bail of Hussain Abad respondent in case F.I.R. No. 37, dated 9-2-1998 under section 302, QDO of Police Station, Alpuri Swat. Having been aggrieved of the order of the learned Sessions Judge/Zilla Qazi Shangla Swat, dated 27-7-1998.

2. According to the facts of the prosecution case on 9-2-1998 Muhammad Sayal complainant reported the matter in Police Station Alpuri at 10-00 a.m. that he was present in Bazar Bala Baba when he was informed that his sister Mst. Naz Begum aged 13/14 years was killed by Hussain Abad respondent. He accordingly rushed to his house where he found the dead body of the deceased and his mother Mst. Sabir Shah and wife Mst. Gul Malia and other inmates of his house informed him that the respondent entered their house and wanted to forcibly take the deceased for contracting a marriage with her but upon the resistance of the deceased she was killed. The accused/ respondent after arrest absconded from the seen of occurrence upto 25-5-1998 when he applied for bail before arrest which was refused. Thereafter, he applied for bail before the Judicial Magistrate/Illaqa Qazi and he was allowed bail on the ground of minority. This order was challenged by the petitioner before the learned Sessions Judge/Zilla Qazi, Alpuri who turned down the request for the cancellation of bail hence the present petition.

3. I have heard the learned counsel for the parties and have gone through the record.

4. The facts of the case suggest that the respondent entered the house of the complainant party with an evil intention of taking away the deceased forcibly for the purpose of marriage the two witnesses of the incident are Mst. Sabir Shah and Gul Malia are natural witnesses to the incident. During the investigation the local police has recovered the alleged weapon of offence at the instance of the accused/respondent.

5. On merits a prima facie case has been made out against the respondent. As far as the delay in reporting the matter is concerned the spot is situated in the hilly track of District Shangla which is upper Swat and during the month of February communication in the area is difficult on account of snow fall.

6. Keeping in view this aspect delay would be possible. The two Courts below have only considered the minority of the respondent in allowing bail to him without considering the gravity of the offence. The Trial Court did not send the accused to the Radiologist for ascertaining the correct bone age of the respondent, despite the fact that several requests were made by the local police since 7-8-1998 upto 1-9-1998.

7. Bail was allowed to the respondent on the basis of his School Leaving Certificate which is not authentic. The trial of the case has commenced but the important fact with regard to the bone age of the respondent is yet to be determined. From appearance the respondent seems to be of 16 years age.

8. The claim of bail by a person on tender age cannot be claimed as a matter of right. In the instant case the lower two Courts below have exceeded their jurisdiction by allowing bail to the respondent without taking into consideration the merits of the case.

9. In the circumstances, I recall the order of bail allowed to the respondent, he is I taken into custody sent to the judicial lock-up with the direction that he should immediately be transferred to the local Central/Sub-Jail, Swat Malakand Division. The Trial Court is directed to get the accused examined by Radiologist to ascertain his age and proceed with the trial by concluding the same positively within six months, under intimation to the Registrar, of this Court. The office is directed to immediately despatch the record of the case to the Trial Court. N.H.Q./324/P Bail cancelled.