WAHID BAKHSH KHOSO vs THE STATE

ORDER

1. ' ALI SAIN DINO METLO, J.---Heard Messrs Asif Ali Abdul Razak Soomro, Advocate for the applicant and Muhammad Ismail Bhutto, the learned State Counsel. The latter has opposed the bail application on the ground that the applicant is involved in a murder case.

2. ' The allegation against the applicant is that on 15-2-2002 at 0015 hours at the threshing-floor of Muhammad Yousuf Khoso, Deh Garhi, he along with five others had committed murder of complainant Ghous Bakhsh's father Muhammad Usman by causing him a fire-arm injury with his Klashnikov. The F.I.R. Was registered on the same day and he was arrested on 23-5-2002.

3. According to his School Leaving Certificate and the Medical Certificate issued by the Medical Officer, Civil Hospital, Jacobabad and counter-signed by the Civil Surgeon, the applicant, at the time of the commission of the offence, was less than eighteen years of age and thus a child within the meaning of section 2(b) of the Juvenile Justice System Ordinance, 2000. The trial Court refused to try the accused under the Juvenile Justice System Ordinance 2000, mainly for the reasons that he was a well built person and police had shown him of twenty years, and for the same reasons he was refused benefit of bail under section 10 of the Ordinance. In this regard it may be mentioned that after referring the applicant to the Civil Hospital, Jacobabad for the determination of his age, the Medical Certificate issued by the Medical Officer and countersigned by the Civil Surgeon should not have been ignored simply on the basis of the age given by police without any supporting evidence or the well built physique of the applicant. Section 7 of the Ordinance provides for determining the age of a person on the basis of medical report. Apparently there seems to be no justification for the trial Court for not relying upon the medical certificate issued by the Civil Surgeon on its own reference. In case the Court doubted its correctness, it could constitute a Medical Board and resolve the issue by taking into consideration the findings of the Board. The evidence available on record clearly showed that the applicant was less than 18 years of age at the time of the commission of the offence and thus a child within the meaning of section 2(b) of the Ordinance. Therefore in view of section 4(3) of the Ordinance, the case comes within the exclusive jurisdiction of the Juvenile Court.

4. Under section 10(7) of the Ordinance, a child accused of an offence punishable with death becomes entitled to bail if he has remained in custody for a continuous period- exceeding one year and his trial has not concluded. However, in view of the proviso to the subsection, 'the Court may refuse to grant bail if there are reasonable grounds to believe that such child is involved in an offence which in the opinion of the Court 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'. The perusal of record shows that the charge was framed on 3-12- 2003 i.e, after more than one and half years of the arrest of the applicant, for which delay he was not responsible. He is also not a previous convict. According to the postmortem examination report the deceased has sustained only one injury caused by a single fire. Thus, the applicant has not acted desperately or brutally and in such circumstances it cannot be said that he is involved in an offence of 'serious, heinous, gruesome, brutal, sensational in character or shocking to public morality'. The words "serious" and "heinous" will have to be read in conjunction with words "gruesome, brutal, sensational and shocking" and not isolation so as to say that the benefit of bail cannot be extended in a serious or heinous crime, because it cannot be said that an offence which is punishable with death is not serious or heinous. As a matter of fact only serious and heinous offences entail capital punishment. When the provision is for the grant of bail in offences involving capital punishment, it cannot be refused merely on the ground that the offence was serious or heinous. In order to refuse bail to a child on the ground of delay in trial, he must be shown to be involved in an offence which in the opinion of the Court is 'serious, heinous, gruesome, brutal, sensational in character or shocking to public morality' and not merely 'serious or heinous'.

5. In view of the above, I am of the considered opinion that the applicant is entitled to bail.

6. Accordingly, he is directed to be released on bail on furnishing one surety in the sum of Rs,400,000 and personal recognizance in the like amount to the satisfaction of the trial Court. The case is also directed to be sent to the Juvenile Court for trial.

7. ' Bail application stands disposed of along with the listed applications.