2000 PLP 1058 (MLD)

Through this petition the petitioner had called iri question the order, dated 2‑4‑1999 passed by the learned Additional Sessions Judge, Rajanpur whereby Respondent No. 1 was admitted to post‑arrest bail in case F.I.R No.460 registered at Police Station Fazilpur, District Rajanpur on 18‑10‑1998 for an offence under section 302/34, P.P.C. The allegation levelled against respondent No. l in the F. I. R. is that she had assisted her co‑accused Abid Hussain in committing the murder of a minor child namely Subhan aged 4/1‑2 years at 4‑30 p.m. on 18‑10‑1998. An application submitted by the petitioner for her post‑arrest bail was dismissed by the learned Additional Sessions Judge, Rajanpur on 3‑2‑1999 on the merits of the case. However, subsequently another application was submitted by the petitioner for her admission to post‑arrest bail before the same learned Court and vide order, dated 2‑4‑1999 the same learned Court admitted respondent No. l to bail. The main ground on which bail was allowed to respondent No. l was that according to a birth certificate issued by Union Council 5ikhani Wala respondent No. 1's age at the time of occurrence was about 11 years.

2. In support of this petition the learned counsel for the petitioner has argued that by virtue of the law declared by the Hon'ble Supreme Court in the case of The State through Advocate‑General, N.‑W.F.P. v. Zubair and 4 others PLD 1986 Supreme Court 173 a fresh application could be moved by Respondent No. l only on a fresh, ground i.e. a ground accruing after dismissal of the earlier bail application. According to the learned counsel for the petitioner this was not the case in the case in hand. It has further been contended by the learned counsel for the petitioner that the birth certificate relied upon heavily by the learned Additional Sessions Judge, Rajanpur in the order, dated 2‑4‑1999 was concoction incarnate and was a manoeuvred documents. He has, thus prayed for cancellation of bail allowed to respondent No.l by the learned trial Court. As against that the learned counsel for, respondent No. 1 has argued that respondent No. l was a girl of 11 years of age and the allegation levelled against her in the F.I.R. was not believable. According to him the order passed in her favour by the learned Additional Sessions Judge in the matter of bail does not call for interference by this Court in the peculiar circumstances of the case. The learned counsel for the State has also taken the position that although the methodology adopted by the learned Additional Sessions Judge for granting bail to respondent No.l was legally defective yet the said order of bail does not warrant interference.

3. After hearing the learned counsel for the parties and going through the record I am in agreement with the learned counsel for the petitioner that the learned Additional Sessions Judge, Rajanpur was not within his jurisdiction to entertain and decide a subsequent bail application of respondent No. l so as to admit her to bail on grounds which had already been the subject‑matter of consideration in the earlier order of refusal of bail to respondent No. l by the same learned Court on 3‑2‑1999. In this respect the reliance placed by the learned counsel for the petitioner on the above mentioned Zubair's case is well‑placed and quite justified.

4. Be that as it may, the fact remains that cancellation of bail lies within the discretion of the Court and it is not absolutely necessary that in every case of passage of an illegal order or passage of an order against the law declared by the Honourable Supreme Court bail must necessarily be cancelled. In the present case there are certain peculiar features which have restrained this Court from cancellation Respondent No. 1's bail despite the abovementioned illegality committed' by the learned Additional Sessions Judge. It is not disputed that respondent No. l is a woman and, therefore, her case attracts the first proviso to subsection (1) of section 497, Cr.P.C. It is settled law that a concession of bail is normally available to a woman even in the most heinous cases. Another peculiar feature of this case is that respondent No. l is stated to be about 11 years of age for which respondent No. l has relied upon *a birth certificate issued by a union council. The petitioner has failed to rebut that assertion of respondent No. l through any documentary or other evidence. Yet another feature of this case is that respondent No. 1 was not attributed any injury to the deceased and her role alleged in the F.I.R. was merely secondary in nature. In view of the admitted minority of the deceased (4‑1/2 years) and the recorded age of respondent No. 1's co‑accused Abid Hussain being about 25/26 years the role of respondent No. l alleged in the F.I.R. may well be an exaggeration. It is also not disputed that the challan in this case has already been submitted before the learned Trial Court and the respondent's trial is about to commence. In such cases bail is ordinarily not cancelled at such a stage. A reference may be made in this respect to the cases of Akmal Masih and others v. Salamat Masih and 4 others (1988 SCMR 918) and Muhammad Ismail v. Muhammad Rafique and another (PLD 1989 Supreme Court 585). Last but not the least is the consideration that this minor respondent No. l had already spent 5‑1/2 months in jail before her admission to bail.

5. For what has been observed above I have decided not to exercise my discretion in favour of cancellation of bail of respondent No.

1. No doubt the illegality by the learned Additional Sessions Judge, Rajanpur is apparent but at the same time discretion of this Court cannot be exercised so as to bring about a result which is oppressive. This petition is, therefore, dismissed. H. B. T. /9/L