INAYATULLAH vs The STATE

ORDER

' ABDUL RASOOL MEMON,The applicant Inayatullah, who is booked in Crime No.169 of 2011, of Police Station Thull, under sections 302, 395, 396, 397 and 39 was declined bail after arrest by learned trial Court vide order dated 9-2-2012. Hence he has filed this bail application.

2. The case of prosecution in brief is that on 28-10-2011, when complainant Aijaz Ahmed along with his brother Altaf Ali aged about 19/20 years, and his relatives Hakim Ali and Farhan Ahmed .Were on the way from Riaz chowk Thull town, as such at about 9-30 p.m. They were confronted by accused Ghulam Rasool having T.T pistol,

2. Inayat armed with gun,

3. Dil Murad with T.T pistol accompanying two unknown persons. Accused Ghulam Rasool robbed complainant of his mobile phone, accused Inayat and unidentified person robbed P.Ws. Hakim Ali Farhan Ahmed of their mobile phones and accused Dil Murad robbed Altaf Ali- of his cash amount of Rs.20,000 and a mobile phone, to which Altaf Ali offered them resistance; in the meanwhile accused Ghulam Rasool made straight fire at Altaf Ali, which hit him and he fell down and the culprits started running.

However, the complainant party raised cries and chased the culprits, and one of the culprits, namely, Ghulam Rasool had fallen down on the road, in the meanwhile patrolling police reached on the spot and with the help of police accused Ghulam Rasool was apprehended on the spot along with T.T pistol and the robbed mobile phone, while rest of the accused made their escape good. Thereafter, the accused and injured were brought at Police Station, and F.I.R. Was registered.

However, injured Altaf Ali succumbed to his injuries, therefore, section 302, P.P.C. Was added in the challan sheet.

3. Heard learned counsel for the applicant, as well as learned State counsel and perused the material available on record.

4. Learned counsel for the applicant mainly argued that as per medical certificate, the applicant is aged about 16/17 years, therefore his case comes within the meaning of juvenile offender, hence he is entitled for bail. In support of his contention he has placed his reliance on the case of Sirajuddin v. Sagheeruddin alias Goga and others (1970 SCM R 30).

5. On the other hand, learned State counsel opposed grant of bail to the applicant on the ground that he is nominated in F.I.R, it is alleged that applicant along with co-accused being armed with T.T pistol robbed mobile phone and cash from complainant and his witnesses and on resistance offered by Altaf Ali, one of them straightly fired upon him resulting into his death. Learned State counsel referred to proviso 10(7) of Juvenile Justice System Ordinance, 2000, whereby the Court niay refuse bail if there are reasonable grounds to believe that a child of the age of 15 years or above is involved in an offence which in its opinion is serious, heinous, gruesome, brutal, sensational in character or shocking to public morality. Learned State Counsel alio referred to section 396 P.P.C, and submits that if anyone of the five or more persons, who conjointly commit dacoity, commits murder in so committing dacoity, every one of those persons shall be punished with death, or imprisonment for life. He further argued that merely because of the reason that accused is of minor age would not entitle him for grant of bail automatically and every case is to be examined in the light of its own facts and discretion has to be exercised judiciously and not arbitrarily. In this regard, he placed his reliance on the cases of Mohammad Sharif v.. Shafaqat Hussain alias Shoukat (1999 SCM R 338) and Muhammad Hashim v. The State (2000 PCr.11 2151),

6. From the material available on record, it appears that the applicant has been nominated in. The F.I.R. And it is alleged against him that he along with four others being armed with gun committed dacoity and on resistance offered by brother of complainant namely Altaf Ali who was aged about 19/20 years, one of the accomplices of applicant fired at him, who ultimately succumbed to his injuries and one of the culprits was apprehended on the spot. To my opinion the act alleged is serious and heinous one. In these circumstances, the ingredients of section 396, P.P.C, are fully attracted to the case of present applicant, which provides that if anyone of the five or more persons who conjointly commit dacoity-cum-murder, every one or those persons shall be punished with death of imprisonment for life. However, the learned counsel for the applicant has urged bail only on the ground of minor age of the applicant, who according to medical report is aged 16/17 years. Mere fact that applicant was below 16 years of age at the time of incident will not ipso facto entitle him to a concession of bail. Moreover, every case is to be examined on its own merits and Court cannot be swa yed away on the plea of minority alone. Minority may be one of the considerations, but not the sole consideration. Even otherwise according to proviso 10(7) of Juvenile Justice System Ordinance, 2000, the court may refuse to grant bail to a child of age of 15 years or above if 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.

7. In the case Muhammad Sharif v. Shafaqat Hussain (supra), the Hon'ble Supreme Court has held that merely because accused was 16 years of age would not make him entitled to the grant of bail automatically and every case to be examined in the light of its own facts and A discretion has to, be exercised judiciously and not arbitrarily. So also in the case of Muhammad Hashim (supra), the same dictum has been laid down.

8. Fore the foregoing reasons and keeping in view the law laid down in the cases referred to above, I am of the opinion that no case for bail is made 'out by the applicant. Consequently, this bail application stands dismissed. However, the observations made hereinabove are tentative in nature and the trial would not be influenced while deciding the case finally.