MUHAMMAD MUMTAZ Versus STATE

ORDER

This is a petition for bail after arrest which has been moved by Muhammad Mumtaz who has been named in F.I.R. No.10 of 1994 dated 3‑1‑1994 under section 302/341/ 379/148/149, P.P.C., P.S. Kotmomin, District Sargodha. Mst. Shahnaz Bibi wife of Muhammad Afzal deceased who is an eye witness of the occurrence also is the maker of F.I.R. Challan of the case has not been put in so far. Similarly learned Additional Sessions Judge, Bhalwal has rejected the bail application of the petitioner on 11‑7‑1994, hence the present petition.

2. According to the F.I.R. Sufi Nazeer, Manzoor and Mumtaz were armed with rifle, carbine and pistol respectively while Nazara was empty‑handed but

Japha has been attributed to him. It has further been alleged that on 3‑1‑1994 at 4‑30 p.m. Mst. Shahnaz Bibi (maker of F.I.R.) alongwith her husband Muhammad Afzal deceased were going from the Dera to the village Lulliani but when they reached near the agricultural land of one Ashraf Luck accused persons mentioned above made the attack with their respective weapons and per claim of the F.I.R. Muhammad Afzal received the head injury from the rifle of Sufi Nazeer and died at the spot. Similarly Nazra the empty‑handed died by the pistol shot of co‑accused Muhammad Mumtaz petitioner. It is enough to mention here that a piece of land has been mentioned as a motive for the above double murder. Rest of the story given in the F.I.R. is not relevant at this stage.

3. Learned counsel for the petitioner has taken different grounds for bail but during the arguments all those grounds boiled down to the plea of minority only which is called statutory bail under the proviso of section 497, Cr.P.C. Said proviso according the learned counsel has been incorporated in the procedural law so that accused persons could press it into service at the earliest possible stage. Learned counsel has relied upon:

1983 SCMR 1001 (Muhammad Anwar v. The State);

PLD 1978 SC 256 (Khalid Javid Gillan v. The State);

PLD 1968 SC 349 (Ch. Abdul Malik v. The State);

1970 SCMR 30 (Siraj Din v. Saghir‑ud‑Din alias Goga and another).

Where minors had been granted bail on the ground of their age only.

4. Learned counsel for the State has opposed the bail petition with tooth and nail and submitted that petitioner has not taken any ground in the bail petition which entitles him to bail. State Counsel further argued that F.I.R. has been lodged promptly where name of petitioner has been mentioned by the maker of F.I.R. and that too without any malice. Post‑mortem report not only corroborate with statements of the eye‑witnesses but also pin one's faith on that role assigned to the petitioner in the F.I.R. is correct. So far as bail on the ground of age is concerned State Counsel has cited the case‑law where bail has not been granted to the minor on this ground alone. Said citations are as under:

1979 SCMR 109 (Haji Fazal Elahi v. Miss Farah Naz and another);

1978 SCMR 235 (Shahbaz Tufail v. The State);

1977 PCr.LJ 421 (Abbas and others v. The State).

After hearing the arguments of the parties and perusing the record I am of the view that learned Additional Sessions Judge, Bhalwal has rightly pointed out in the order appealed against that what to speak of certificates qua the age of the petitioner (Annexures 'C' & 'C/1') ground of minority had not been taken in the bail application moved before the trial Court. So, it is for the first time that age certificates are appearing on the record of High Court. Under such‑like circumstances if bail is granted to the petitioner then said documents cannot be questioned at the time of trial and as such bail granted by this Honourable Court will tantamount to a discharge order qua the petitioner from the case.

6. Keeping in view the dictum of their Lordships of Supreme Court cited above it is discretion of the superior Courts to grant the bail on the ground of age, which I refuse to exercise at this early stage. However, petitioner will be entitled if so advised to move the bail application before the trial Court but after the recording the evidence concerning the innocence and age of the petitioner. With these observations bail petition is hereby dismissed.

N.H.Q./M‑2566/L Bail refused.