2014 PLP 422 (YLR)

SHEHZADA MAZHAR, J.

This is 2nd petition on the subject on behalf of the petitioner. The earlier one bearing Criminal Miscellaneous No.12653-B of 2011 was dismissed by this Court vide order dated 10-10-2011.

2. Through the instant petition, the petitioner has sought for his post-arrest bail in case F.I.R. No.300 of 2009 dated 31-8-2009, offence under sections 302, 148, 149, 109, P.P.C., registered with Police Station, Eminabad, District Gujranwala.

3. Allegation against the petitioner, in brief, as per contents of the F.I.R., is that on 31-8-2009 at about 5-30 p.m. the complainant along with his brother passed through the "sheller" which is the joint ownership. Jahan Zeb while armed with pistol .30 bore, Sufian armed with rifle, Mumtaz Hussain along with two unknown accused persons stopped the complainant to drive the tractor on the way upon which the tractor was switched off; the complainant's paternal uncle namely Aftab who is an advocate was informed after return back upon which they proceeded to patch up the matter and Mumtaz Hussain and Shafqat become infuriated on telephone call entered into the fight, started to give beating to Mubashar and the co-accused pointed their pistols towards Aftab etc. and asked Sufian to commit murder and he made the straight fire upon Mubashar due to which Mobashar fell on the ground and succumbed to the injuries. Mumtaz Hussain asked to murder Aftab but one Amanat Ali intervened and rescued Aftab. It is alleged that the occurrence is committed upon the instigation and abetment of Zulfiqar, hence, the F.I.R.

4. Learned counsel for the petitioner submits that petitioner's ossification test was conducted in compliance of the order of this Court on 27-7-2012 by the Standing Medical Board and it was declared that at the time of occurrence the petitioner was aged 16 years, 1 month and 7 days. Therefore, bail was moved before the trial Court on fresh ground which was dismissed, hence the instant second bail application with fresh ground of juvenile as well as statutory has been filed.

5. While arguing the case on merits, learned counsel for the petitioner submits that the petitioner has falsely been implicated in the instant case by the complainant against the actual facts and circumstances with ulterior motives. It is argued that the petitioner is named in the crime report with specific allegation of causing one fire arm injury to the deceased. It is contended that separate challan has not been submitted before the learned trial Court despite the directions of the learned Additional Sessions Judge, as the petitioner was juvenile. It is argued that through the Medical examination, the age of the petitioner has been proved to be sixteen years one month and seven days, therefore, in terms of provisions contained in the Juvenile Justice System Ordinance, 2000, the petitioner is entitled to bail and he is also entitled to the relief of post arrest bail on statutory delay. It is argued that investigation being complete, his corpus is no more required by the police for further investigation and as such no useful purpose would be served by his further detention in jail. It is argued that in such circumstances, the case against the petitioner becomes one of further inquiry falling within the ambit of section 497(2), Cr.P.C.

6. As against above learned Law Officer assisted by learned counsel for the complainant has vehemently opposed this petition. It is contended that the petitioner is nominated in the F.I.R. with specific role. There is a daylight occurrence and petitioner has taken a life of innocent person therefore, he does not deserve any leniency. Medical evidence is in line with the ocular account. Further submits that petitioner's bail was rejected not only statutory ground but also on merits by this Court vide order dated 10-10-2011. Recovery has been affected from the petitioner. The case of the petitioner falls within the prohibitory clause under section 497, Cr.P.C. The delay in conclusion of the trial is attributed to the petitioner, therefore, he is not entitled to the concession of bail.

7. Arguments advanced from all corners have been heard. I have also gone through the record.

8. There is no denial to this fact that while filing the earlier bail petition, the ground of juvenile was not available to the petitioner and after declaring the petitioner as juvenile vide order dated 20-3-2013 by the Additional Session Sessions Judge, Gujranwala on the basis of medical report of Standing Medical Board, the petitioner has fresh ground to file second/instant petition. Hence, this 2nd petition is maintainable on the subject.

9. Undeniably the petitioner is named in the F.I.R. with specific allegation, but admittedly the petitioner is a juvenile and he is behind the bars since 18-9-2009. It would be advantageous to reproduce the section 10(7) of Juvenile Justice System Ordinance, 2000:-- S.10(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 concluded; (b) if, being accused of any offence punishable for imprisonment for life has been detained for such an offence for a continuous period exceeding six months and whose trial for such offence has not concluded; or (c) who, being accused of any offence not punishable with death, or imprisonment for life, has been detained for such an offence for a continuous period exceeding four months and whose trial for such an offence has not been concluded: 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 with 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."

10. The Juvenile Justice System Ordinance, 2000 was promulgated to safeguard the rights of minors who deserve special protection in view of tenderness of their ages. In PLD 2002 Karachi 18 "Afsar Zaman v. The State" it has been held that:-- "The Ordinance is aimed at extending protection to the children involved in criminal litigation and their rehabilitation in society. In a way, it safeguards the human rights of a section of society who deserve reasonable concession because of their tender age, therefore, the Ordinance is to be construed liberally in order to achieve the said object."

11. Further in Siraj Din v. Saghir-ud-Din alias Goga and another (1970 SCMR 30), the then Hon'ble Chief Justice of Pakistan while dealing with the petition for cancellation of bail granting order of the High Court observed as under:-- "this accused, who has been granted bail by the High Court is evidently a minor. The age based on X-ray examination is between 16 and 17 years. That is a ground on which bail may be granted even in a case of a capital offence and it is clear that there has been no excess of power, or irregularity in the exercise of discretion." (Emphasis added).

12. The object of every law is welfare of the society and Juvenile Justice System Ordinance, 2000 is no exception. Therefore being Juvenile at the date of occurrence and is behind the bars since the date of arrest i.e. 18-9-2009. The case of the petitioner is one of instant reaction and not serious, heinous, gruesome, brutal or shocking to public morality. Further the motive is also not attributed to the petitioner.

13. Resultantly the instant petition is accepted and the petitioner is admitted to bail after-arrest subject to his furnishing bail bonds in the sum of Rs.2,00,000 with two sureties in the like amount to the satisfaction of the learned trial Court. MWA/S-83/L Bail granted.