MUHAMMAD IRSHAD vs ABID HUSSAIN AND Other
This petition arises from an order of the Lahore High Court granting bail to the respondent in a murder case, primarily on the finding that the respondent was under 16 years of age. The petitioner challenged this order before the Supreme Court, contending that the respondent was actually over 18 years of age at the time of the occurrence and submitting documentary evidence, including a birth entry, to contradict the affidavit previously relied upon by the High Court. The Supreme Court observed that the material now presented by the petitioner was not available to the High Court at the time of the initial bail order, partly because the complainant was not represented during those proceedings. Consequently, the Court declined to adjudicate the factual dispute regarding the respondent's age directly. Instead, the Supreme Court disposed of the petition with the direction that the petitioner may approach the High Court for the cancellation of bail, where all new evidence and grounds may be properly urged and considered in the first instance.
- Can a petitioner seek cancellation of bail in the High Court based on new evidence not previously presented?
- Is it appropriate for the Supreme Court to determine a disputed question of fact regarding an accused's age in the first instance?
ORDER
ANWARUL HAQ, C. J.-The petitioner is aggrieved by an order made by a learned Judge of the Lahore High Court on the 3rd of October, 1979, by which he has allowed bail to the respondent Abid Hussain during the pendency of a murder case against him mainly on the ground that he was below the age of 16 years. In recording this conclusion the learned Judge was influenced by the fact that in an affidavit filed before him by the respondent's uncle Muhammad Ashraf it was averred that the boy was 16 years of age and had not yet taken the Matriculation examination.
2. Mr. Zafar Mahmood submits that the affidavit was not correct, as, in fact, respondent Abid Hussain was more than 18 years of age on the date of occurrence, having been born on the 25th of February 1960. In support of this submission, the learned counsel has placed on the record a certified copy of the birth entry relating to one Abid Hussain son of Khan Muhammad son of Fazal Dad. The learned counsel also submits that the respondent bad ceased to be a student and had not, in fact, taken any Matriculation examination, and that the birth entry recorded in the certificate furnished by the school authorities, namely, 11-11-1964, was incorrect.
3. It appears to us that it is a fit case where the petitioner should move the High Court for cancellation of bail on the grounds, which are. Sought to be urged before us, as apparently this material was not before the learned Judge, when passed the impugned order. It seems that the comp--lainant was not represented at the time of the hearing of the bail application, and, therefore, his point of view could not be brought to the notice of the learned Judge.
4. In the circumstances the petition is disposed of with the direction that the petitioner may, if so advised, move the High Court for cancellation of bail, and it would be open to him to urge all the grounds, which are sought to be raised before us.