2006 P Cr (PLP)

NADEEM AZHAR SIDDIQI, J.

The applicant is facing trial under sections 302, 147, 148, 149, 504, P.P.C. in Crime No.67 of 2004 of Police Station Khairpur Nathan Shah. The allegation against the applicant Sikandar Ali is that he being armed with Danda along with other accused caused Danda blows to Abdul Rasheed with intention to kill him. As a result whereof Abdul Rasheed succumbed to injuries. Earlier a bail application was moved before the trial Court which was dismissed and the Bail Application bearing No.620 of 2004 was filed before this Court which was disposed of on 23-5-2006 as not pressed giving right to the applicant to file a fresh bail application before the trial Court. On filing of the fresh application on the ground that the applicant was minor at the time of incident was again dismissed on 20-72005 by the learned trial Court. While dismissing the bail application the learned trial Court held that applicant is involved in heinous offences the applicant has confessed his guilt before the 1st Civil Judge and Judicial Magistrate, K.N, Shah and crime weapon has been recovered from the possession of the applicant. The learned counsel for the applicant has submitted that the applicant was minor at the time of incident hence he is entitled to the concession of bail as a matter of right under the proviso of section 497(1), Cr.P.C. and section 10(7) of the Juvenile Justice System Ordinance, 2000. The learned State counsel has opposed the grant of bail on the ground that the sufficient evidence is available on the record to connect the applicant with the commission of the crime and that bail cannot be .granted as a matter of right. I have heard the learned counsel for the parties and perused the record. The incident took place on 17-4-2004. As per the school certificate the applicant was born on 16-10-1989 and at the time of incident was less than 18 years of age. According to medical certificate on the day of examination i.e. 18-4-2005 age of the applicant was found to be 17 years. From both the certificates it is established that at the time of incident the applicant was under the age of 18 years and is a child within the meaning of section 4(3) of the Juvenile Justice System Ordinance, 2000. Section 10(7) of the Juvenile Justice System Ordinance, 2000 reads as under: "

10. Arrest and bail. (1)

(2)

(3)

(4)

(5)

(6)

(7) Notwithstanding anything contained in the Code and except where a Juvenile Court is of the opinion that the delay in the trial of the accused has been occasioned by an act or omission of the accused or any other person acting on his behalf or in exercise of any right or privilege under any law for the time being in force, a child who, for commission of an offence, has been detained, shall be released on bail:

(a) if, being accused of an offence punishable with death has been detained for such an offence for a continuous period exceeding one year and whose trial for such an offence has not been concluded; (b)

(c)

Provided that where a child of the age of fifteen years or above is arrested, the Court may refuse to grant bail if there are reasonable grounds to believe that such child is involved in an offence which in its opinion is serious, heinous, gruesome, brutal, sensational in character or shocking to public morality or he is a previous convict of an offence punishable with death or imprisonment for life." Grant of bail to a juvenile was considered by the two learned Benches of this Court. In the reported case of Manzoor Ahmed v. State 2002 PCr.LJ 657 bail was granted on the ground that the age of the accused was not above 17 years at the time of commission of offence and being a minor he has remained in custody for more than nine months. In the other reported case of Wahid Bux Khoso v. State 2006 MLD 507 bail was granted to a child under the age of 18 years involved in a case under section 302, P.P.C. and it was held that the bail cannot be refused to a child offender. I have considered the arguments of the learned counsel for the parties. From the medical as well as school certificate it is established beyond doubt that at the time of commission of offence the applicant was a child below the age of 18 years. Section 10(7) of the Ordinance provides that a child accused of an offence punishable with death becomes entitled to bail if he remained in custody for a continuous period exceeding one year and his trial has not concluded. However, in view of the proviso to the subsection the Court may refuse the bail if there are reasonable grounds to believe that such child is involved in an offence which in the opinion of the Court is serious, heinous, gruesome, brutal, sensational in character and shocking to public morality or he is a previous convict of an offence punishable with death or imprisonment for life. The learned trial Court has not rejected the bail application on the ground mentioned in the proviso to section

19. The record shows that the accused was arrested on 5-5-2004 and the challan was submitted in the Court on 12-5-2005 and the charge was framed on 12-11-2005 which shows that the applicant is in custody since last about one year. The record further shows that after framing of the charge the case was not proceeded some times due to absence of the learned counsel for the applicant and sometimes for the other reasons and as such the over all delay in trial cannot be totally attributed towards the applicant. The Ordinance being a special law enforced in order to safeguard the rights of children/minor involved in criminal cases who deserve reasonable concession because o1' their tender age and the provisions of the Ordinance are to be liberally construed/interpreted in favour of child/accused. Once the accused has come within the definition of child he is entitled for grant of bail, even if involve in the case punishable with death. However, the concession is subject to limitations contained in proviso to clause (c) of subsection (7) of section 10 of the Ordinance. The manner in which the alleged offence was committed cannot be said to be corning within the four corners of proviso of section 10(7) of the Ordinance. There is no material on record to show that applicant is previously convicted. In the reported case of Wahid Bux Khoso v. State 2006 MLD 507 a single Bench of this Court IB held as under: "

The words "serious" and "heinous" will have to be read in conjunction with words "gruesome, brutal, sensational and shocking" and not isolation so as to say that the benefit of bail cannot be extended in a serious or heinous crime, because it cannot be said that an offence which is punishable with death is not serious or heinous. As a matter of fact only serious and heinous offences entail capital punishment. When the provision is for the grant of bail in offences involving capital punishment, it cannot be refused merely on the ground that the offence was serious or heinous. In order to refuse bail to a child on the ground of delay in trial, he must be shown to be involved in an offence which in the opinion of the Court is serious, heinous, gruesome, brutal, sensational in character or shocking to public morality' and not merely 'serious or heinous'." From the above judgment it is clear that the bail cannot be refused to a child offender unless strictly comes within the limitations contained in the proviso to clause (c) of subsection (7) of section 10 of the Ordinance. In view of the above I am of the opinion that the applicant is entitled to the concession of hail. Accordingly the applicant is directed to be released on bail on furnishing one surety in the sum of Rs.2,00,000 and personal bond in the like amount to the satisfaction of trial Court. The bail application is allowed. H.B.T./S-53/K Bail granted.