KHALIL vs The STATE
This matter arises from a petition for special leave to appeal filed against the judgment of the High Court, which had cancelled the pre-trial bail previously granted to the petitioner Khalil. The petitioner was accused alongside his father under Section 302/34 of the Pakistan Penal Code 1860 for the murder of Ghulam Haider. The core legal questions involved whether the petitioner was attributed any overt act warranting bail and whether he fell within the statutory age exception under Section 497(1) of the Code of Criminal Procedure 1898 for persons under sixteen years of age. The Supreme Court held that the allegations, if unrebutted, exposed the petitioner to capital punishment or imprisonment for life, and documentary evidence established that the petitioner was above sixteen years of age at the time of the offence, thereby excluding him from the beneficial exception of Section 497(1). Consequently, the Supreme Court dismissed the petition, upholding the High Court's order cancelling the petitioner's bail.
- Whether an accused person aged above sixteen years at the time of the commission of the offence is entitled to the benefit of the exception under subsection (1) of Section 497 of the Code of Criminal Procedure 1898?
- Does an allegation under Section 302 read with Section 34 of the Pakistan Penal Code 1860, if unrebutted, preclude the grant of bail?
- Are there sufficient grounds to interfere with a High Court order cancelling bail when the accused is prima facie connected to a capital offence?
- Section 302/34, Pakistan Penal Code 1860
- Section 497(1), Code of Criminal Procedure 1898
ORDER
1. ASLAM RIAZ HUSSAIN, J.-Khalil petitioner was accused along with his father Siddiq of an offence under section 302/34 of the Pakistan Penal Code. It is alleged that at about 1-30 'a.m. On the night between the lst and 2nd of December, 1977 the two accused went to the house of Ghulam Haider deceased who was sleeping under the Chhappar in the Verandah of the courtyard of the house, while his uncle Jamal Din and his elder brother Abdul Rashid P. Ws. Were sleeping in the Baithak.
2. Abdur Rashid and Jamal Din were awaken by the report of a fire-arm and came out of the Baithak and they saw Ghulam Haider deceased holding Khalil petitioner in a Jappha. Siddiq co-accused who was carrying a .12 bore pistol fired a shot at Ghulam Haider which hit him on the right arm.
3. Ghulam Haider fell down and consequently died of the injuries received by him. Khalil had been granted bail by the learned Additional Sessions Judge (II), Sahiwal on the 24th of June, 1978. His brother Abdur Rashid however made an application for the cancellation of his bail before the High Court. The application was accepted and the petitioner's bail was cancelled by a learned Single Judge of the High Court vide order dated the 27th of November, 1978. Hence the present petition for special leave to appeal.
4. We have heard the learned counsel for the petitioner at length. The learned counsel urged firstly that no incriminating overt act was attributed to Khalil petitioner and secondly that he .Was of a tender age and his action falls within the Exception to subsection (1) of section 497 of the Code 'of Criminal Procedure.
5. On going through the First Information Report we find that the allegation against the petitioner, if left unrebutted, would render him liable to a sentence of death or imprisonment for life. Moreover from the school leaving certificate produced before us by the petitioner's counsel it is found that even at the time of the commission of the offence he was above 16 years of age. His case is therefore not covered by the Exception to section 497 (1), Cr. P. C.
6. We see no ground to interfere with the order of the High Court. The petition is consequently dismissed.