Hafiz MUHAMMAD BILAL vs THE STATE and another

ATTAULLAH KHAN, J.---Hafiz Muhammad Bilal son of Abdur Rahman, accused/petitioner, charged in case F.I.R. No.221 dated 20-7-2010 of Police Station Gomal University, District D.I. Khan, under sections 302/34, P.P.C., has filed this application for his release on bail.

2. Brief facts according to the F.I.R. Are that on 20-7-2010 at 07.30 hours complainant Attaullah son of Sher Zaman reported to the local police of Police Station, Gomal University, D.I. Khan that his brother Rahmatullah at deggar vela had gone for some work to some unknown place on his Motorcycle bearing No.L-6081/D.I. Khan but did not return back. We searched him but his where about was not known to us. Today at morning time complainant asked Maulvi Masjid Qari Riyaz Gandi Umar that his brother Rahmatullah for last 5/6 days is missing and his whereabouts are not known and requested him for his help. For this purpose complainant along with other relatives and co-villagers came out for the search of Rahmatullah. At morning 06.30 hours when they reached at some distance in the side of Khud, they found the dead body of Rahmatullah along with other articles and photocopy of identity card. Complainant and Ramzan son of Haqnawaz caste Baloch had dispute over the women-folk and he stated that his brother Rahmatullah was killed by Muhammad Ramzan, Rabnawaz, Mushtaq alias Musha sons of Haqnawaz, Hafiz Abdur Rahman son of Sona Khan through their weapons. Complainant later on charged the present accused/petitioner in his statement recorded before the Court.

3. Learned counsel for the petitioner argued that the accused/petitioner is of tender age, therefore, he is entitled to the concession of bail. According to learned counsel accused/petitions was not charged in the F.I.R. But later on in supplementary statement, was named by the complainant on 25-7-2010 after five days of registration of the case. It is further contended that the case of accused/petitioner is of further inquiry.

4. On the other hand, the learned counsel for complainant argued that tender age is no ground for release of accused/petitioner, if otherwise he is found involved in the commission of offence. It is also argued by him that the accused/petitioner has confessed his guilt before competent Court.

He argued that weapon of offence has been recovered and the FSL report confirmed that the empty recovered was fired from the said pistol. He lastly argued that formal charge has been framed against the accused/petitioner and the trial has commenced.

5. I have gone through the record carefully and considered the submissions of the learned counsel for the parties.

6. I would first discuss argument regarding the, tender age of accused/petitioner. According to learned counsel the accused/petitioner, he is of 17/18 years as per medical report. Record also reveals that his trial has been separated from other accused and is being tried by Juvenile Court.

The complainant's counsel has submitted that form which was filed by accused in the office of NADRA for obtaining identity card reveals date of birth of accused/petitioner as 1-1-1991 while the occurrence took place on 15-7-2010. At time of occurrence the age of accused/petitioner was 19 years, 16 months and 14 days, so as per form submitted by accused/petitioner in the data of NADRA, he is above 19 years or age, therefore, plea of tender age of the accused/petitioner has become disputed. Though the Courts have taken view in favour of Juvenile accused in matter of bails but that is qualified and conditional. The Courts are required to see as to whether there are other materials available on record connecting accused/petitioner with the commission of offence. Reference may be given 1996 PCr.LJ 1455, wherein it is held that:-- "I have considered the foregoing submissions and find that the prosecution has collected sufficient evidence to link all the petitioners with the occurrence. The last seen evidence is not only reliable but natural. There is no enmity between the parties. The injuries on the person of deceased on the parties like knees, elbows and buttocks further gives a strong impression that he was subjected to carnal intercourse before he was done to death. The mere fact that the petitioners are stated to be less than 16 years of age is not established at this stage because another birth certificate is also produced which shows that the date of birth of Nisar Ahmad was 30-11-1979. The correct date of birth would become clear only when the entire evidence is put into juxtaposition."

7. Record further shows that the accused/petitioner has admitted his guilt before Judicial Magistrate on 28-7-2010. This confessional statement has fully involved accused/petitioner in the commission of offence. In his said confessional statement he has stated that he handed over the pistol to the police. The accused/petitioner has also pointed out the places where he committed the offence. The FSL report is also on file. It appears that the empties recovered from the spot were fired from the pistol, used by the accused/petitioner in the commission of offence. The FSL report is also against the accused/petitioner. Another fact to be noted that Hafiz Attaullah, who was examined under section 164, Cr.P.C. By competent Court, wherein he nominated the present accused/ petitioner for the commission of offence. So the confessional statement and other materials are also against the accused/petitioner.

8. Besides above two witnesses Umar Khetab and Qamar Zaman have also deposed that they saw the deceased lastly in the company of accused/petitioner. This fact is also relevant to be taken against the accused/petitioner.

9. As stated earlier, as the trial is also commenced and formal charge framed against the accused/petitioner. When the trial is started, the Courts have declined the release of the accused it may affect the trial.

10. In short two witnesses have lastly seen the deceased in the company of accused/petitioner. The accused/petitioner has made confession before the competent Court. The age of the accused/petitioner is still disputed. Formal charge against the accused/petitioner has been framed and the trial commenced.

11. In such circumstances, I find no merit in this application for bail which is accordingly dismissed.