1996 P Cr (PLP)

Date of hearing: 26th February, 1996. After being unsuccessful to get bail from the lower forum in case F.I.R. No.60, dated 4-6-1995 registered at Police Station Kakki, District Bannu, under section 302/34, P.P.C. the petitioner has sought the indulgence of this Court through the instant application for the same relief.

2. S. Zafar Abbas Zaidi, Advocate appearing for the petitioner, has confined his arguments to three-fold grounds: Firstly; that according to the School Leaving Certificate (Annexure "D"), the petitioner is below fourteen years of age and thus was entitled to the concession of bail under proviso (1) to section 497, Cr.P.C. Secondly that according to the date so far collected, the investigating Officer has opined that the petitioner has not participated in commission of the crime and, thirdly; that the petitioner was arrested on 12-7-1995 and the provisions of sections 5 and 5-A of the Suppression of Terrorist Activities (Special Courts) Act, 1975 (hereinafter referred to as the Act) have not been complied with.

3. On the other hand, Mr. Muhammad Khan Khakwani, Advocate, learned counsel for the State assisted by Mr. Dost Muhammad Khan, Advocate, learned counsel for the complainant, have opposed the grant of bail on variety of grounds, particularly that the accused is directly charged in the promptly lodged F.I.R. for committing double murders in a broad daylight. It was also submitted that the weapon of offence used in commission of the crime is klashnikov and, therefore, the case in hand is exclusively triable by the Special Court established under the provisions of the Act ibid. This special Act has provided the mode of investigation and cognizance of the case by the Special Court and, as such, the discretionary relief may not be extended in favour of the petitioner.

4. I have considered the respective arguments of the learned counsel for the parties and perused the record with their valuable assistance.

5. Age of the accused/petitioner (i) There are two versions in respect of the age of the accused/petitioner, but no ossification test has been held so far in order to reach at a correct conclusion in this respect. (ii,) As far as the second submission of the petitioner's counsel is concerned, the opinion of the police is not binding on the Court. This point cannot be dealt with at bail stage and is left open for the determination of the trial Court to adjudicate upon the guilt or innocence of the accused at the close of trial. (iii) In response to the third ground raised by the petitioner's counsel, the other side has pressed into service the provisions of sections 5 and 5-A of the Act. Suffice it to say that the special law was required to be applied as a whole and no pick and choose could be allowed for the benefit of the prosecution on the one hand and to the detriment of the accused on the other. If special law contained certain special consideration with regard to bail, it also contained some specific provisions which imperatively provided for the submission of challan within a period of fourteen days and conducting trial in a speedy manner by day to day hearing and if all such provisions, even if stringent, were applied together and at one time, there was a strong likelihood of final decision of the case before the accused could feel to be released on bail. After arrest of the accused, i.e. 12-7-1995, the challan has not been submitted/put in Court so far, muchless the commencement or conclusion of the trial, despite the passage of almost 8-1/2 months after the occurrence.

6. Since the challan is complete with effect from 24-7-1995, it is directed that the same should be submitted/put in Court within seven days. The Special Court shall take c6gnizance of the case and shall proceed with the trial from day to day and shall decide the case speedily as required under section 5-A(1) of the said Act. In order to ascertain the exact age, the accused/petitioner should be referred to the District Headquarters Hospital, Bannu for ossification test. In case the provisions of section 5-A(1) of the Act ibid are not complied with in letter anti spirit, then the accused/petitioner, will be at liberty to move fresh application for his release on bail. The office shall transmit record of the case back to the trial Court forthwith.

7. In light of the foregoing discussion, at present, the points raised by the learned counsel for the petitioner do not merit consideration for the grant of bail and the instant application is disposed of in the above terms. N.H.Q./1946/P ?????????????????????????????????????????????? ??????????????????????????????????? Order accordingly,