BABAR Versus STATE

ORDER

In a robbery, which had been allegedly committed on 18‑5‑1994 at about 1.00 p.m. wherein four culprits had allegedly hired a taxi; had taken the same towards a secluded place; had attempted to snatch the same near a graveyard arid in the process two of the culprits i.e. Shehzad and Shabbir had allegedly fired shots at the Taxi Driver who had ultimately lost his life about seven days after the occurrence. Two of these accused persons had allegedly been apprehended at the spot alongwith their respective weapons, but two of them and out of whom one is the present petitioner, had managed to escape.

The bail is being canvassed by the petitioner on the grounds that he was only about a month more than sixteen years of age at the time of occurrence; that he had not been apprehended at the spot; that no eye‑witness was available with the prosecution to confirm guilt .of the petitioner; that the alleged dying declaration of Muhammad Aslam, deceased, wherein the petitioner had been specifically named, was a doubtful affair and that the petitioner did not stand burdened with any injury to the victim in the occurrence nor to any one else and no recovery had been affected from the petitioner or at his instance and that in the circumstances the petitioner deserved to be released on bail.

2. Whether the petitioner is over sixteen years of age by a day or by a month or by a year is irrelevant as long as he himself admits that he is over sixteen years. In the circumstances, he falls outside the ambit of the first proviso of section 497 of Cr.P.C. and cannot be allowed concession of bail on that account. The learned counsel was at a loss to offer any reasonable explanation about false involvement of the petitioner. He admits that he had no enmity with the complainant or with the police who had either registered the case or had thereafter investigated the same. A half‑hearted submission was made that he had been falsely, implicated at the instance of Asif, co‑accused, but the learned counsel could give no explanation as to why Asif accused would have falsely involved the petitioner in the occurrence in question. The petitioner is named not only in the F.I.R., but even in dying declaration made by the deceased. The evidentiary value of the dying declaration can be determined only at the trial. Needless to mention here that merely being a member of a gang of robbers is good enough to make any member of the said gang liable not only for his own acts but even for the acts of his co‑robbers.

3. I find no merits in this petition and the same is dismissed.

H.B.T./B‑161/L Petition dismissed.