ISMAIL vs The STATE
This criminal petition arises from the refusal of the Sessions Judge, Diamer, to grant post-arrest bail to the petitioner, who is charged with murder and arms possession under Sections 302/34 of the Pakistan Penal Code 1860 and Section 13 of the Arms Ordinance. The core legal questions were whether the petitioner, claiming to be a juvenile, was entitled to bail based on age, and whether the rule of consistency applied given the discharge of a co-accused by the police. The Court held that the petitioner was not entitled to bail. It determined that the school leaving certificate, indicating a date of birth that contradicts the juvenile claim, must be accepted at the tentative bail stage over the medical board's opinion, which requires further proof at trial. Furthermore, the Court ruled that the rule of consistency was inapplicable because the co-accused's discharge under Section 169 of the Code of Criminal Procedure 1898 remained subject to the trial court's final determination. The principle established is that documentary evidence like a school certificate prevails over medical opinion at the bail stage, and police discharge of a co-accused does not automatically mandate bail for others.
- Does a school leaving certificate take precedence over a medical board opinion regarding the age of an accused at the bail stage?
- Does the discharge of a co-accused by the police under Section 169 of the Code of Criminal Procedure 1898 automatically entitle the remaining accused to bail under the rule of consistency?
- Is the court required to conduct a final determination of evidence during the consideration of a bail petition?
- Section 302, Pakistan Penal Code 1860
- Section 34, Pakistan Penal Code 1860
- Section 13, Arms Ordinance
- Section 169, Code of Criminal Procedure 1898
' MUHAMMAD ALAM, J.---Petitioner, who is involved for the offences of section 302/34, P.P.C., booked through FIR No.26/2014 and section 13 of Arms Ordinance, booked through FIR No.28/2014 of Police Station Tangir, District Diamer, seeks his release on bail through this petition. Previously, petitioner sought similar facility from the court of Sessions Judge Diamer, who, through his order dated 19-12- 2014, refused to grant the same, hence this petition.
2. The FIR of the occurrence found chalked on the written application of the FIR lodger, who is uncle of the deceased. Through the said application, the FIR lodger complained that, at the time of occurrence, the FIR lodger was cutting maize crops along with his son Afridi and nephew Haji Deen, when he heard fire shut reports and saw petitioner opening fires on his nephew Haji Deen. A bullet of the firing of the petitioner hit the deceased on his head and the deceased fell down. Petitioner had his brother Ishaq with him. Both petitioner and his said brother aimed weapons at the complainant and his son Afridi also. The complainant and his son Afridi ran away from the scene feeling afraid of fires on them also. On this, petitioner came close to the deceased and opened fires on the deceased. Then petitioner took the rifle of the deceased also and ran away. On this, complainant and his son Afridi went near the deceased who had by then died.
3. I have heard arguments of the parties at length and have thoughtfully considered the same.
Learned counsel for petitioner mainly argued on the ground that petitioner is a juvenile, therefore, is entitled to the bail facility. In this connection, learned counsel for petitioner relied on opinion of medical board dated 17-12-2014, wherein, the doctors save opined that the age of petitioner ranges from 14 to 16 years. The second ground of the bail petition is rule of consistency. In this connection learned counsel for petitioner argued that police has released the co-accused of the petitioner under section 169, Cr.P.C. On the other hand, learned Deputy Advocate General opposed the bail facility to the petitioner and argued that the occurrence is of day light and the eyewitnesses have seen the occurrence. Learned Deputy Advocate General denied that petitioner is a juvenile. In this connection, learned Deputy Advocate General argued that the admitted birth certificate of the petitioner is 02-02-1997. Learned Deputy Advocate General further argued that charge sheet/challan for trial of petitioner has been submitted in the trial court, and instead of cooperating, the petitioner is using delaying tactics and the case is being adjourned by the trial court for framing charge of the petitioner from 06-03-2015 till now.
4. It is not disputed that, at this stage of the case, courts are only tentatively assessing the prosecution evidence for considering grant or refusal of the bail facility to the petitioner or accused. The occurrence is of day light and at least 2 eye-witnesses have seen the occurrence.
School leaving certificate of the petitioner clearly shows that his date of birth is 02-02-1997, therefore, at this stage of the case, courts are bound to accept the same as correct. The opinion of the medical board still needs to be proved through evidence in the trial. The rule of consistency does not attract as police has discharged Mr. Ishaq, co-accused of the petitioner, under section 169, Cr.P.C. And it is still up to the trial court either to charge the said co-accused for the alleged offence or to accept the police version. Therefore, I am not inclined to grant the bail facility to the petitioner.
5. Petition dismissed. File be consigned to record.