2022 PLP 83 (YLRN)

ALI ZIA BAJWA, J.

Through this petition, the petitioner seeks post arrest bail in case FIR No.453/2020 dated 03.12.2020 registered under sections 324, 34, P.P.C. at Police Station Kundiar District Mianwali.

2. Precisely, the allegation as levelled in the FIR against the petitioner is that he along with his co-accused armed with 30-bore pistol caused injuries to Khushi Muhammad and Majid Ali. The specific allegation against the petitioner is that he made first fire shot, which landed on Khushi Muhammad, PW at his left thigh, second fire shot made on Majid Ali which was missed and third fire shot hit on his buttock. After committing the offence, both accused fled away from the spot while leaving their motorcycle.

3. Learned counsel for the petitioner with reference to the birth entry of the petitioner, has argued that at the time of alleged commission of offence, the petitioner was of 15- years 7-months and 7-days old and thus he should have been considered as Juvenile; that the injuries attributed to the petitioner were neither fatal nor on vital part of the body, hence he is entitled to the concession of bail.

4. On the other hand, the learned DPG has vehemently opposed this bail application on the grounds that the petitioner is involved in heinous offence, which falls within the prohibitory clause of Section 497, Cr.P.C., hence he is not entitled to the concession of bail.

5. Arguments heard. Record perused.

6. A person like petitioner, who even according to prosecution version did not repeat the fire on persons of injured and the injuries caused to each injured by a single fire allegedly shot by the petitioner were declared subsequently as 337-F(iii), P.P.C. which is punishable with maximum imprisonment of three years or Daman, therefore, cannot be kept behind the bars for an indefinite period by way of pre-trial punishment.

7. It is admitted fact that date of birth of present petitioner is 14.08.2005, verified by the Investigating Officer in the light of certificate issued by NADRA, hence the petitioner at the time of occurrence was less than 16-years of age, therefore, his case falls within the definition of child as defined under Juvenile Justice System Act, 2018 (hereinafter to be called as Act, 2018). According to Section 6(3) of the Act, 2018 where a juvenile is arrested or detained for commission of a minor or a major offence for the purposes of this Act, he shall be treated as if he was accused of commission of a bailable offence, hence the injuries attributed to the petitioner are bailable in nature and applicability of Section 324, P.P.C. shall be determined after recording of evidence during trial.

8. For ready reference and convenience the provisions of Section 2(g), (m) and (o) of the Act, 2018 are reproduced herein below: "(g) "heinous offence" means an offence which is serious, gruesome, brutal, sensational in character or shocking to public morality and which is punishable under the Pakistan Penal Code, 1860 (Act XLV of 1860) or any other law for the time being in force with death or imprisonment for life or imprisonment for more than seven years with or without fine; (m) "major offence" means an offence for which punishment under the Pakistan Penal Code, 1860 (Act XLV of 1860) or any other law for the time being in force is more than three years and up to seven years imprison-ment with or without fine; (o) "minor offence" means an offence for which maximum punishment under the Pakistan Penal Code, 1860 (XLV of 1860) or any other law for the time being in force is imprisonment up to three years with or without fine;" Although record reveals that the petitioner was arrested in the present case on 03.12.2020 and on his pointation 30-bore pistol was recovered on 11.12.2020 but no crime empty was taken into possession during spot inspection, hence such recovery become inconsequential.

9. Keeping in view the nature of injuries, locale of injuries and the tender age of petitioner, this petition is allowed and he is ordered to be released on bail subject to his furnishing bail bonds in the sum of Rs.1,00,000/- with one surety in the like amount to the satisfaction of learned trial Court.

10. The observations made above are tentative in nature and will have no effect upon any proceedings during the trial. SA/A-62/L Bail granted.