1992 P Cr (PLP)

Sanaullah Khan for the Complainant. Date of hearing: 21st April, 1990, Kiramatullah Khan, petitioner herein, is an accused for the attempt at the life of Hamidullah Khan by firing. A case under section 307, P.P.C. was registered against him on the 8th of January, 1989 at Police Station Tajori District Bannu.

2. The facts of the case are that Hamidullah Khan, a student of 6th Class was on his way from School to his house after the school hours on 28‑1‑1989. When he reached near the Baithak of Kiramatullah Khan, accused‑petitioner, at 15‑30 hours, the petitioner fired two shots at him with his gun with which he was hit and fell to the ground. Kiramatullah Khan was also stated to be a student of 5th Class. Motive for the offence was that prior to the occurrence, the complainant and the accused‑petitioner had exchanged abuses.

3. The accused‑petitioner made an application for his release on bail to a Magistrate of First Class, Lakki, who granted him bail on 10‑12‑1989 on the ground of his minority, being 10/11 years old. However, on the application of the complainant to the learned Additional Sessions Judge, Bannu at Lakki, the bail granted to the petitioner was cancelled on two‑fold grounds: firstly, that the accused‑petitioner had fired two successive shots at the complainant and; secondly, that the accused‑petitioner had remained in abscondence for about 11 months. Feeling aggrieved by the said order, the petitioner has now come up to this Court for the grant of bail.

4. Learned counsel for the State, on the authority of Sultan Khan v. Amir Khan P L D 1977 SC 642, contended that bail is not normally granted in case in which murder was committed by the use of fire‑arms. This authority, I am afraid, has no application to the facts of this case, in that it is a case of attempted murder and not of culpable homicide amounting to murder.

5. It is no more in dispute that the petitioner, at the time of occurrence, was hardly 12 years old. According to his School Leaving Certificate, the petitioner was born on 12‑1‑1977 and thus he was a few days more than 12 years on the day of occurrence i.e. 8‑1‑1989. He was, therefore, evidently a minor. That is a ground on which bail may be granted even in a case of capital offence what to say of a case of attempted murder under section 307, P.P.C.

6. The submission that the petitioner has remained in abscondence which would disentitle him to the concession of bail gets support from the authority of august Supreme Court in Awal Gul v. Zewar Khan P L D 1989 S C

402. Nonetheless, the ratio in Awal Gul's case cited at the bar was elaborated by the Honourable Supreme Court in the case of Muhammad Sadiq v. Sadiq P L D 1985 S C 182 in the following words:‑‑ "In some rare cases notwithstanding abscondence, the accused might be released on bail for example, when the accused is a woman, a child or a sick and infirm person or when he otherwise becomes entitled to bail as of right under subsection (2) of section 497, Cr.P.C. and/or the so‑called abscondence is satisfactorily explained by the accused so as to establish that in reality it did not amount to abscondence," This dictum of the Honourable Supreme Court was reiterated in Najib Gul v, Khalid Khan 1989 S C M R 899 in the following paragraph:‑‑ "Unfortunately it has been ignored that noticable abscondence deprives an accused person of concession of bail unless he gets it as of right under subsection (2) of section 497, Cr.P.C. or the offence is bailable otherwise. The grant of bail as of right under section 497(2), Cr.P.C. is possible only when a finding is rendered that `there are not reasonable grounds for believing that the accused has committed the particular offence."

7. The rule deducible from the perusal of the aforesaid authorities of the Honourable Supreme Court is that abscondence will not operate as an absolute bar against the claim of bail pending trial in cases falling within the prohibitory clause of subsection (1) of section 497, Cr.P.C. which either fall under the first proviso to subsection (1) or those under subsection (2) of section 497, Cr.P.C. 8. 1n the present case, although two fire shots had been attributed to the accused‑petitioner, but the fact remains that both at the time of occurrence and when this petition was filed in this Court, he was less than 13 years of age. I, therefore, accept this petition and admit the petitioner to bail in the sum of Rs.50,000 with two sureties each in the like amount to the satisfaction of any Magistrate of First Class, Lakki Marwat.

9. By my short order, dated 21‑4‑1990, I have admitted the petitioner to bail. The above are the reasons of my said order. H.B.T./1304/P???????????????????????????????????????????????????????????????????????????????????????????????? Bail granted.