NAEEM KHAN vs THE STATE and 2 others

' The petitioner namely Naeem Khan, has moved instant application for grant of bail on refusal of the same by the Courts below i,e, Judicial Magistrate, Bannu and Additional Sessions Judged, Bannu vide orders dated 25-10-2003 and 4-11-2003 respectively. The petitioner is one of the accused persons involved in case F.I.R. No,390 dated 25-8-2003 registered at Police Station, Mandan, Bannu, under sections 302/324/148/149, P.P.C. At the instance of complainant Raast Ali Khan, The petitioner is accused of having, on 25-8-2003 at 18-00 hours in the lands of Munawar Khan situated in Hai Kalla in the precinct of Police Station Mandan Bannu, alongwith Uamr Ayaz Khan, Imran Khan and Ghufran Khan (absconding co-accused) caused the murders of Gul Malyaz Khan, Hamzar Ali Khan and Razeb Khan by firing indiscriminately with Kalashnikovs. The petitioner was arrested on 9-11-2003.

2. Syed Fakhruddin Shah, Advocate for the petitioner without highlighting merits of the case invited my attention to the School Leaving Certificate of the petitioner and attempted to argue that petitioner was of 13 years, four months and 13 days of age at the time of commission of offence and in view of the provisions of Juvenile Justice System Ordinance, 2000 he was entitled to the relief of bail which has been denied to him without any legal justification.

3. Mr. Shaukat Hayat Khakwani, learned Deputy Advocate-General assisted by Mr.Naimatullah Jamal, Advocate for the complainant, opposed the bail application tooth and nail and submitted that the prosecution has collected sufficient incriminating material to connect the petitioner with the guilt and the plea of minority alone cannot be made a basis for release of an accused on bail.

They placed reliance on Muhammad Sharif v. Shafqat alias Shaukat 1999 SCM R 338 and Habibullah v. The State 2003 PCr.LJ 1788.

4. I have considered all these contentions in the light of material available on record and case-law cited above.

5. The mere fact that petitioner is minor, will not, ipso facto, entitle him to the concession of bail.

Every case has to be examined on its own merits and Court cannot be swayed away on the plea of minority alone. It is the gravity of the offence and other attending circumstances that ought to be kept in mind while exercising such discretion.

6. No doubt, the Ordinance being a Special Law enforced in order to safeguard the rights of children/minor involved in criminal cases who deserve reasonable concession because of their tender age, is to be liberally interpreted in favour of the accused and if the age of such an accused would be one day less than 18 years, he would come within the definition of child as contained in section 2(b) of the Ordinance and would be entitled to the grant of bail, even if involved in case punishable with death. However, this concession is subject to the limitations contained in proviso to clause (c) of subsection (7) of section 10 of the Ordinance, under which if the Court comes to the conclusion that there are reasonable grounds to believe that such child is involved in an offence which, in its opinion, is serious, heinous, gruesome, brutal, sensational in character or shocking to public morality or he is a previous convict of an offence punishable with death or imprisonment for life, then he would not be entitled to this concession. In the present case, according to the F.I.R. The petitioner stands saddled with the responsibility of indulging alongwith others, in indiscriminate firing culminating into murders of three defence less persons. In the circumstances, I do not feel inclined to release him on bail. The application fails which is hereby dismissed. Bail refused.