ALI SHAH Versus STATE

ORDER

On 27-6-1989 at about 10-4.5 a.m. deceased Khair Muhammad alias Kharo cut jokes with applicant Ali Shah, a Pathan boy of fair complexion, who in a lit of temper fired at him by means of a pistol, but the shot missed the target Deceased Khair Muhammad took refuge in the hotel of Sher MLhammad situated in Gharibabad Market, Dhabeji. The applicant, however, followed him and fired two shots causing him injuries. Applicant Ali Shah then decamped. Deceased Khair Muhammad was removed to the hospital, where he died. On the same day at 11-40 a.m. the report of this incident was lodged at Police Post Dhabeji, which was subsequently incorporated in 154, Cr.P.C. book at Police Station Gharo. The applicant was taken into custody and after usual investigation he was sent up to' stand trial, The applicant applied for bail before learned Sessions Judge Thatta on the ground of tender age, but without success. He' has, therefore, approached this Court with the same prayer.

2. I have heard Mr.Aftab Ahmad Akhund, learned counsel for applicant and Mr.Shaukat H. Zubedi, learned A.A.-G. for State. The latter has raised no objection to the grantor bail to applicant.

3. The bail application is pressed before me mainly on the ground of tender age of the applicant. According to Police Surgeon, Karachi, the age of applicant at the time of incident was about 15 years. The birth certificate zinc: school leaving certificate, however, show his date of birth as 24-10-1972 meaning thereby that the age of applicant at the time of incident was 16 years, 8 months and 3 days. I had also the occasion to see the applicant in Court and to me he appears to be of 16 years of age

4. The first proviso to subsection (1) of section 497, Cr.P.C. is an exception to the general rule of not releasing a person on bail who, if there appear reasonable grounds, for believing, has been guilty of an offence punishable with death, imprisonment for life or 10 years. The language in which this proviso is couched makes it clear that this provision of law is discretionary and not mandatory. However, the policy of law is that very young persons should be granted bail in the absence of some circumstances in the case, which would disentitle the applicants to the grant of bail. (Refer 1979 S C M R 109).

5 Mr. Aftab Ahmad Akhund, learned counsel for applicant has contended that the best evidence to prove age is that of radiologist and his report should be given preference to a birth certificate or school leaving certificate. He has placed reliance upon the following cases.

(i) Shaikh Hassan v. Bashir Ahmad and another P L D 1966,PFsh, 97.

(ii) Iftikhar v. The State P L D 1972 Pesh 27

(iii) Yousaf v. The State 1975 P Cr. L J 936

(iv) Ismail v The State 1983 P Cr. L J 1750

(v) Unreported judgment in Criminal Revision Application No.9 of 1985.

In all the above cases preference was given to the report issued by radiologist. An important observation was made in the unreported judgment cited at No.(v), which is as follows:

"Even otherwise, it is not uncommon in this country that the parents do not disclose correct ages of their children while seeking admission in school. The instances are not wanting where parents disclosed ages of ~' their children at the time of admission in educational institution which were different from their real ages and it is perhaps for this reason that the Courts of law have preferred medical evidence over entries appearing in school leaving certificate regarding ages."

6. The medical evidence is not conclusive and decisive, because it is primarily an evidence of opinion. The scientific process in this advanced age specially ossification test is, however, a better guide to arrive to a definite finding about the age of a person. The birth certificate is, however, the best evidence to arrive a finding of this nature and is a sure guarantee of truth. According to birth certificate the age of applicant at the lime of incident was more than 16 years and consequently his case does not fall within the mischief of first proviso to subsection (1) of section 497, Cr.P.C.

7. Applicant Ali Shah who is a handsome boy of less than 17 years of age was infuriated over a joke cut by deceased Khair Muhammad, which could be~ vulgar. There was no previous hostility between the parties and incident appears to have taken place all of a sudden. The detention of a good, looking boy like the A present applicant with hardened criminals will certainly spoil his moral fabric. Respectfully following the case reported as Siraj Din v. Saghiruddin alias Goga and another IQ70 S C M R 30, 1 extend concession of bail to, applicant who shall be released on bail in the sum of Rs. 75,000. (Rs. seventy-five thousand only) with P.R. in the like amount to the satisfaction of Sessions Judge Thatta,

S.A./A-729/K Bail allowed.