2014 P Cr (PLP)

ALI BAQAR NAJAFI, J.

Seeks post arrest bail in case F.I.R. No.989 dated 10-8-2012 registered under sections 324/34, P.P.C. subsequently added section 302, P.P.C. with Police Station, Batala Colony, Faisalabad.

2. The allegation against the petitioner is that on the day of occurrence at 2-15 p.m., the petitioner and Naveed Iqbal, returned after Juma prayer to their common house when a quarrel had taken place between the children of Naveed Iqbal and Javed Iqbal. Naveed went upstairs of the residence where the petitioner used to reside. Shafqat Bibi and the petitioner forbade him in the presence of Muhammad Imran, Jehanzeb and Shabbir. Mst. Shafqat Bibi raised lalkara to kill Naveed Iqbal. On this, the petitioner fired with his .12 bore gun at Naveed Iqbal hitting on his left flank, who died at the spot. The motive behind the occurrence is a dispute over the house between the petitioner and the deceased.

3. The learned counsel for the petitioner submits that the occurrence had taken place inside the portion of the house belonging to the petitioner; that there was a property dispute between the deceased who was the real uncle of the petitioner; that in fact, the mother of the petitioner was severely beaten, who remained unconscious after which the petitioner, being her son, tried to save her mother; that the petitioner is aged 15 years and 3 months as his date of birth is 30-4-1997; that report of the Medical Board reveals that the age of the petitioner is between 15 and 16 years which proves that he is juvenile and entitled to all the rights provided to him under the Juvenile Justice System Ordinance; that the petitioner is behind the bars for the last nine months and the trial has not yet commenced. Places reliance upon "SIRAJ DIN v. SAGHIR-UD-DIN alias GOGA AND ANOTHER" (1970 SCMR 30), "MUHAMMAD ANWAR v. THE STATE" (1983 SCMR 1001), (2002 MLD 1566) and "GHULAM MUSTAFA AND ANOTHER v. THE STATE" (1971 PCr.LJ 485) and prays for the post arrest bail.

4. Conversely, the learned counsel for the complainant assisted by learned DPG submits that the petitioner was involved on the basis of statement made under section 161, Cr.P.C. by Jehanzeb and Imran, who was declared guilty by police during the investigation; that under section 10 of the Juvenile Justice System Ordinance, 2002, the court may refuse to grant bail even to a juvenile. The learned DPG adds that the deceased was 45 years of age and the age of the petitioner does not matter much in the offence for which the capital punishment is provided and prays for dismissal of the petition.

5. I have heard the learned counsel for the parties and perused the record.

6. The main emphasis of the learned counsel for the petitioner is that the petitioner is juvenile and for this reason he may be granted post arrest bail. The Standing Medical Board has determined the age of the petitioner at less than 16 years which is also corroborated by his birth certificate according to which he is stated to be about 15 years and 3 months at the time of occurrence. He is behind the bars for the last nine months. The challan of the case has already been submitted and he is no more required for the purpose of investigation. The maturity of the mind of the petitioner in the environment and circumstances prevailing at the time of occurrence may be better appreciated by learned trial Court after recording evidence. Under section 10 of the Juvenile Justice System Ordinance, 2002, a minor under the age of 16 years at the time of commission of offence is normally granted bail unless exceptional circumstances are found on the record. I do not see any such circumstances flouting on the record to disentitle the petitioner from the concession of bail set out for the persons like petitioner by legislature.

7. I am fortified by a leave refusing order passed by Justice A.R. Cornelius in case titled "SIRAJ DIN v. SAGHIR-UN-DIN alias GOGA AND ANOTHER" (1970 SCMR 30), the relevant portion of the order is reproduced as under:-- "This accused, who has been granted bail by the High Court is evidently a minor. The age based on X-ray examination is between 16 and 17 years. That is a ground on which bail may be granted even in a case of a capital offence, and it is clear that there has been no excess of power, or irregularity in the exercise of discretion."

8. In this view of the matter, the case of the petitioner falls in first proviso to subsection (1) of section 497, Cr.P.C. I, therefore, accept this petition and admit the petitioner to bail subject to his furnishing bail bonds in the sum of Rs.2,00,000 (Rupees two lac only) in the like amount to the satisfaction of learned trial Court. MH/M-221/L Bail allowed.