2020 PLP 297 (YLR)

ALI BAIG, J.

The petitioner/ Juvenile accused namely Muhammad Razi alias Muhammad Khalil son of Syed Wali through the instant bail petition seeks post arrest bail in case FIR No.16/2017 dated 21-7-2017, registered under section 302, P.P.C. at Police Station Gupis.

2. Succinctly prosecution story as unfolded in the FIR is that, the complainant namely Syed Sultan Hussain son of Goro Khan resident of Bathi Bathrait Tehsil Gupis reported the matter verbally in Police Check Post Bathraiat stating that on 21.7.2017 at about 11.00 a.m. the petitioner/Juvenile accused has committed murder of his younger brother namely Anwar Hussain by opening fires with Pistol at Bathi Bathriat Tehsil Gupis. The occurrence was witnessed by eye-witnesses namely Hajat son of Muhammad Azam Khan, Muhammad Rahim Khan alias Ma Khan son of Syed Rahim Khan and Hukum Khan son of Muhammad Karim Khan residents of Bathi Bathriat Tehsil Gupis. The motive alleged was that the deceased had insulted brother of the petitioner/ Juvenile accused. The FIR was lodged by SHO Police Station Gupis on the written letter/murasila issued/sent by Issa Khan ASIP Incharge Police Check Post Bathariat.

3. The learned counsel appearing on behalf of the petitioner/Juvenile accused contended that the petitioner/ Juvenile accused is innocent and the complainant has falsely implicated the petitioner/ Juvenile accused in this case. The learned counsel for the petitioner/Juvenile accused further contended that the petitioner/ Juvenile accused was 15 years and four months old at the time of occurrence as his date of birth is 02-3-2002 as per his school leaving certificate, hence the petitioner is Juvenile, therefore, he is entitled to release on bail under the provisions of section 10(7) of Juvenile Justice System Ordinance, 2000. The learned counsel for the petitioner further argued that the petitioner is behind the bars since 21-7-2017 and prosecution has failed to conclude the trial of the petitioner/Juvenile accused, therefore, the petitioner/Juvenile accused is entitled for concession of bail.

4. In support of his contentions the learned counsel for the petitioner has relied upon the following reported judgments of superior courts. (1) 2014 PCr.LJ 352, (2) 2014 PCr.LJ 622 and (3) 2014 YLR 422

5. On the other hand the learned Deputy Advocate General vehemently opposed the arguments advanced by the learned counsel for the petitioner/Juvenile accused by contending that the petitioner/ Juvenile accused has committed brutal murder of an innocent person. The learned Dy. Advocate General further argued that trial of the petitioner/Juvenile accused could not be concluded as the petitioner/ Juvenile accused has failed to produce his counsel before the learned trial court on various dates of hearing. In support of his contentions the learned Deputy Advocate General has relied upon the following case laws:-- (1) 2005 YLR 1651 and (2) 2005 PCr.LJ 1500.

6. It is pertinent to mention here that earlier the petitioner/Juvenile accused had filed a bail petition before the learned vacation Sessions Judge, Gilgit which was dismissed by the learned vacation Sessions Judge, Gilgit vide bail order dated 12-01-2019, hence this petition.

7. I have heard the learned counsel for the parties and perused the record with their able assistance.

8. The main contention of the learned counsel for the petitioner is that the petitioner is juvenile and for this reason, he is entitled for concession of post arrest bail under the relevant provisions of Juvenile Justice System Ordinance 2000. Admittedly, the petitioner/accused is juvenile as per School Leaving Certificate issued by Head Master F.G. Middle/Community Base High School Damas District Ghizer his date of birth is 02-3-2002, thus the age of the petitioner/Juvenile/accused was less than 16 years at the time of occurrence and he is facing trial before the learned Judge Juvenile Court/Sessions Court Ghizer. The petitioner is behind the bars for the last more than one year and 9 months and the prosecution has failed to conclude the trial of the petitioner/Juvenile accused, hence the petitioner/ Juvenile accused is entitled for concession of bail under the provisions of section 10(7) of Juvenile Justice System Ordinance, 2000. It would be advantageous to re-produce the section 10(7) of Juvenile Justice System Ordinance, 2000 as under:-- Section 10 arrest and bail (7) Not withstanding anything contained in the Code and except where are 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) 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 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 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.

9. From bare reading of aforesaid provisions of law, I have come to the conclusion that the case of the petitioner/ Juvenile accused falls within ambit of the provisions of section 10(7)(a) of Juvenile Justice System Ordinance, 2000, therefore, I accept this petition and admit the petitioner/Juvenile accused to post arrest bail subject to his furnishing bail bonds in the sum of Rs.5,00,000/- (Five lacs) with two sureties each in the like amount to the satisfaction of the learned trial Court at Gahkuch Ghizer. File. MQ/55/GB Bail allowed.