ASGHAR ALI Versus THE STATE

ORDER

1. The bail plea in this case has been urged mainly on the ground of age of applicant Asghar Ali who on the day of incident i.e. 7‑9‑2001 was 17 years, 7 months and 4 days old as per entries in the school leaving certificate of Government Primary School Dato Chandio and Government Provincialized Municipal Higher Secondary School, Larkaha which have been placed on record and the authenticity thereof has not been disputed.

2. Mr. Muhammad Ayaz Soomro learned counsel for the applicant submitted that the applicant is a child within the meaning of clause (b) of section 2 of the Juvenile Justice System Ordinance, 2000 as at the time of commission of offence he had not attained the age of 18 years. In this context he urged that as contemplated under clause (a) of section 12 of the said Ordinance, no punishment of death can be awarded to a child, therefore, instead of clause (a) to subsection (7) of section 10 of this Ordinance, clause (b) of the said subsection shall apply to the case of applicant and since the applicant has remained in custody for more than six months he may be released on bail. Secondly, he submitted that even under clause (ay of section 299, P.P.C. adult would be a person who has attained the age of 18 years but the applicant was not 18 years old on the day of commission of offence he, within the meaning of clause (i) of the same section, is a 'minor'. He referred to an unreported order of this Court passed in Criminal Bail Application No.270 of 1998 wherein bail was granted in similar circumstances. Reliance in that bail matter was placed on the case of Muhammad Sudheer v. The State (1998 MLD 1994) wherein bail was granted to an accused whose age was below 18 years on the ground that within the meaning of section 306 read with section 308, P.P.C. the only punishment to be awarded to a minor could be of Diyat, subject, however, to 2nd proviso to section 308, 'P.P.C. which lays down that in case of sufficient maturity the Court may award imprisonment for 14 years as Ta'zir.

3. Mr. Muhammad Bachal Tunio, Additional Advocate‑General conceded to this legal position and submitted that intention of Legislature was to widen the scope of powers of the Court in relation to the cases of minors or so to say the persons who in legal sense are not adult and have not attained the age of 18 years at the time of commission of offence. He had, therefore, no objection to grant of bail.

4. I have considered different legal aspects of the case in the light of case‑law. In Sudhir's case (supra) legal implications flowing from inter alia sections 306 and 308, P.P.C. were discussed and bail was granted.

5. Admittedly, the applicant was minor within the meaning of clause (a) read with (ij to section 299, P.P.C. and as such was not liable to Qisas as contemplated under clause (a) to section 306, P.P.C. In that event even if the applicant is found guilty of `Qatl‑i‑Amd' he will be liable to Diyat. The next question relating to sufficient maturity of the applicant as prescribed in the 2nd proviso to section 308(1), P.P.C. is of vital importance. Mr. Muhammad Ayaz Soomro submitted that no doubt in the F.I.R. it is alleged that the applicant and co‑accused repeated the fire but the co‑accused has been let off during investigation and this part of story, under the cannons of law relating to assessment of evidence, suffers from a drawback which is yet to be covered up at the trial. It is significant to note that the view taken in Sudhir's case was also on the same lines that the maturity of mind of the accused can better be judged by trial Court. Indeed, it would be premature to asses the state of mind, on the basis of material so far available unless the witnesses are subjected to cross‑examination.

6. In view of the above, I am in respectful agreement with the view taken by this Court in the aforementioned criminal bail application wherein bail was allowed to an accused who was below 18 years of age in an offence of Qatl‑i‑Amd.

7. As for the contention based .on clause (a) of section 12 of Juvenile Justice System Ordinance, 2000, nothing can clearly be spelt out from the conflicting provisions as on one side under section 12 the punishment of death to a child has been expressly barred/excluded while under clause (a) to subsection (7) of section 10 of the same Ordinance, it is laid down that a child facing a case punishable with death can be allowed this concession only when he has remained in custody for more than one year. Apparently this subsection can be related to offence punishable with death and not the punishment to be awarded to an accused.

8. However, the applicant is entitled to bail in view of the provisions of sections 306 and 308 of Pakistan Penal Code discussed above, coupled with no objection on behalf of the State. Consequently, the application is allowed. The applicant be released on furnishing surety in the sum of Rs.300,000 (three lacs) and executing P.R. Bond in the like amount to the satisfaction of trial Court.

9. H.B.T./A‑325/K

10. Bail granted.