P L D 1994 Peshawar 173 (PLP)

Imran Khan petitioner, seeks bail in a case registered against him and another under section 337‑A(ii), P.P.C. at Police Station, Mandani vide F.I.R. No.219 dated 24‑9‑1993.

2. Rahat Shah, complainant, while in injured condition reported the occurrence charging therein the petitioner and another on 24‑9‑1993 at 14‑30 hours for stabbing when the former had entered the sugar‑cane crop. Nawab Shah was stated to have witnessed the occurrence. Thereupon, a case under section 337‑A(ii), P.P.C. was registered against the petitioner and his unidentified co‑accused. Later on, on re‑investigation by the C.I.A. Staff the offence was altered from section 337‑A(ii) to that of 324, P.P.C. and one Wahid Gul was also charged by the complainant's father in his statement recorded under section 364, Cr.P.C.

3. The petitioner had earlier moved a petition before a learned Magistrate of the First Class, Tangi, for bail which was accepted on 25‑11‑1993 and he was released on bail on two‑fold grounds: (i) that "the accused petitioner was of tender age and a school‑going boy" and (ii) that "the offence carries punishment up to five years and is not covered by the prohibitory clause of section 497, Cr.P.C." The complainant feeling aggrieved of the aforementioned order filed a petition for the cancellation of bail granted to the petitioner which was accepted by the learned Additional Sessions Judge, Charsadda, on the grounds: firstly, that the complainant had suffered nine injuries of which "injury No.3 was on the left side of chest and one inch in length .... and on the face of it four wounds inflicted on the person of the complainant extended to the body cavity of trunk," (underlining is by me) and, secondly, that no doubt as per School Leaving Certificate he is below 16 but it is not a rule of universal application that minor, as of right, must be allowed bail .. and that "the petitioner has not behaved like a minor as there were nine wounds of sharp weapon". Hence this petition for bail.

4. Mr. Attaullah Khan, learned counsel for the petitioner, has substantially reiterated before me the contentions which had weighed heavily with the learned Magistrate to admit the petitioner to bail. According to him, the learned Additional Sessions Judge has erred to hold firstly that the accused‑petitioner had prima facie committed an offence which fell within the prohibitory clause of section 497(1), Cr.P.C. and that notwithstanding his minority, he was not entitled to the concession of bail as envisaged by the fast proviso to section 497(1), Cr.PC because "he had not behaved like a minor" a term which was too vague to deserve any serious consideration.

5. As against this and notwithstanding the concession made at the bar by the learned counsel appearing on behalf of the State, Mian Mohibullah Kakakhel, learned counsel for the complainant, submitted that the learned Additional Sessions Judge has rightly held that the petitioner has prima facie committed an offence which fell within the prohibitory clause of section 497(1), Cr.P.C., in that, the petitioner was liable under section 324 read with section 34, P.P.C. which entails punishment of imprisonment which may extend to ten years. Mian Mohibullah Kakakhel further contended that conceding for the sake of argument that petitioner was 16 years old still by inflicting as many as nine stab wounds that too for achieving an immoral object he has not acted like a minor and was not entitled to the concession of bail on the ground of minority.

6. It would be for the trial Court to determine after recording evidence of the Medical Officer who had no doubt found injuries Nos. (iii) and (v) each 1" in length on chest and shoulder while injury Nos. (vi) 1/2" in size also on shoulder. He has not clarified as to whether any one or more of these injuries were `Jurh' which had "extended to the body cavity of the trunk" and that "these injuries were such as to endanger the life of the victim". It would be appropriate for the trial Court to adjudge whether the offence allegedly committed by the petitioner fell under section 324, P.P.C. or under section 337‑D or 337‑A(iii), P.P.C. It is thus a case of further inquiry within the contemplation of section 497(2), Cr.P.C.

7. It was conceded at the Bar that the petitioner was minor the question is whether the petitioner has in fact not behaved like a minor and was not entitled to the concession of bail as envisaged by the first proviso to section 497(1), Cr.P.C. In the F.I.R. of occurrence and the subsequent statements of the P.Ws. recorded under sections 161 and 164, Cr.P.C., no motive has been divulged. It cannot be, therefore, said with exactitude that the petitioner had not acted like a minor particularly when in the F.I.R. one unidentified person and in the Zimnis three others have allegedly assaulted the victim.

8. In the circumstances narrated above, there are no reasonable grounds for believing that the petitioner has committed a non‑bailable offence but there are sufficient grounds for further inquiry into his guilt. The petitioner is prima facie minor and is entitled to the concession of bail pending trial under the first proviso to section 497(1), Cr.P.C. He is, therefore, directed to be released on bail if he furnishes bail bonds in the sum of Rs.50,000 with two sureties each in the like amount to the satisfaction of the Sub‑Divisional Magistrate Charsadda. Any observations made in this order ate tentative in nature and shall not be taken to be determinative in effect. N.H.Q./1545/P Bail allowed.