BASHIR AHMED Versus THE STATE
ORDER
1. The applicant Bashir Ahmed is facing trial in Session Case No.415 of 2002 in the Court of 1st Additional Sessions Judge, Malir Karachi, in Crime No.278 of 2002 punishable in the offence under section 302/34, P.P.C. of Police Station Quaidabad. The bail plea on behalf of the applicant/accused was filed in the trial Court on the ground that applicant is juvenile offender as provided under Juvenile Justice System Ordinance, 2000 and is also entitled to the grant of bail on merits, but the same application was dismissed on 27‑3‑2003 by the trial Court.
2. The brief facts as disclosed in the F.I.R. are that on 4‑11‑2001 at 15‑50 hours Abdullah Khan, Nazim UC‑3, informed on telephone that one corpse of an unknown person has been recovered during the cleanliness of drain at KTC Depot, near Ice Factory and some officer may be sent for necessary investigation. The above‑said information was recorded in the station diary and the A.S.‑I. Muhammad Nasir Khan reached, a other spot and after preliminary investigation, the above F.I.R. was lodged on behalf of the State through A.S.‑I. Muhammad Nasir Khan. During the course of investigation some witnesses were examined and ultimately applicant/accused was arrested on 13‑11‑2002 and during investigation applicant/accused admitted his guilt and he led the police party to the place of incident and pointed out the same place in presence of Mashir Shamsuddin and Abdullah Khan and also pointed out cement block which was hit by the applicant/accused at the deceased. The interim charge‑sheet was filed before Judicial Magistrate and the same was treated as final, by the said Magistrate and case was sent to the Court of Session where the bail application was filed but it was dismissed. Hence, this application.
3. It is contended by the learned counsel for the applicant that the case against the accused is false and based upon enmity as name of the applicant/accused does not transpire in the F.I.R. nor any names of prosecution witnesses have been mentioned and there is delay of 15 days in lodging of the F.I.R. for which no explanation had been furnished. It is further urged by the learned counsel that applicant/accused was referred to Medico‑legal Officer, Civil Hospital Karachi for ascertaining the age of applicant/accused. The medical certificate reveals that the age of the applicant/accused is in between 18‑19 years and applicant is entitled for the concession of bail under Juvenile Justice System Ordinance, 2000. It is further urged by the learned counsel that according to the prosecution applicant/accused pointed cement block which was hit by the applicant/accused at the deceased and circumstantial evidence has been created by the Police Official in order to involve him falsely. It is further urged by the learned counsel that ossification test though is better guide to ascertain age of a person yet not an accurate estimate and margin of one year on either side is possible. It .is further argued that the recovery of plastic drum, one pocket telephone diary and other material were seized by A.S.I. Nasir Muhammad Khan prior to the arrest of applicant/ accused and the F.I.R. was not lodged, therefore, the recovery is inadmissible under Article 38 of Qanun‑e‑Shahadat Order, 1984 and the said evidence cannot be used against the applicant Mr. S. Jawaid Haider Kazmi learned counsel for the applicant has relied upon the case of Yousuf v. The State 1975 PCr.LJ 936, Bonay Khan v. The State 1975 PCr.LJ 453, Khudr Ali Abbasi v. The State PCr.LJ 634, Umer Hayat v. Jehangir and others 2002 SCMR 629 and case of Muhammad Ishaq v. Muhammad Nadeem and others 2002 SCMR 440.
4. Conversely, Mr. Fazal‑ur‑Rehman, learned counsel for the State has opposed the application on the ground of age as well as on merits. It is stated that as per prosecution case P.W. Gul Ahmed has informed the police that deceased and applicant/accused were partners and applicant/accused was arrested on 13‑11‑2000 and pointed out the place of Wardat where he has pointed out cement block and confessed the guilt and also pointed out the place where the dead body of the deceased was thrown. It is further stated that as per clinically bony ossification test the applicant/accused is opined as 18‑19 years of age, therefore, the applicant/accused is not entitled for concession of bail.
5. I have heard the arguments of both the learned counsel and examined the documents placed on record and the case‑law cited by the learned counsel for the applicant.
6. It is an admitted fact that the name of the applicant/accused does not transpire in the F.I.R. neither the name of any prosecution witness has been mentioned in the F.I.R. and F.I.R. has been lodged after 15 days and there is no direct evidence to connect the accused with the crime but during the course of investigation circumstantial evidence and statement of some witnesses were recorded on 13‑11‑2002. It is also case of prosecution that at the time of information conveyed by Abdullah Khan and Nazim UC‑3 after recording station diary Muhammad Nasir Khan, A.S.‑I. proceeded and after preliminary enquiry the above F.I.R. has been registered. It is alleged by the prosecution that applicant accused while in custody lead the police and pointed out the place where the dead body was thrown and also place of Wardat and pointed cement block (brick stone). Apart from it the recovery of incriminating article at the instance of accused is not contemporaneous with the utterance of disclosure, as both the elements are separated by long passage of time and it is yet to be decided by the trial Court whether such recovery in the shape of circumstantial evidence can be accepted or not. I have examined section 10(7)(c) of the Juvenile Justice System Ordinance, 2000 where it is specifically provided that where a child of the age of 15 years or above is arrested the Court may refuse to grant bail if there are reasonable grounds to believe that such child is involved in a heinous, gruesome, brutal, sensational in character and shocking to public morality or he is a previous convict of an offence punishable with death or imprisonment for life.
7. As the applicant/accused was referred to Medico‑legal Officer, Civil Hospital, Karachi for ascertaining the age as per report it reflects that the age of applicant is in between 18‑19 years and, therefore, applicant is not entitled to the grant of bail automatically on the sole ground of tender age and the case of the applicant/accused does not fall within the definition of Juvenile Justice System Ordinance, 2000.
8. Since there is no eye‑witness of the occurrence and only circumstantial evidence is allegedly shown against the applicant/accused. As far as the other merit of the case is concerned, there is no direct evidence but according‑to the interrogation statement of the applicant/accused it is specifically stated that the deceased intended to commit sodomy upon applicant for 2/3 times and tried to off tape of the trouser but the deceased was bent upon to commit sodomy whereupon applicant/accused in order to get rid from the deceased's act a stone block was hit on the head of the deceased with a view to save his honour. There is no direct evidence and there is possibility that circumstantial evidence has been fabricated as the statements of prosecution witnesses were recorded on 13‑11‑2002 whereas the F.I.R. was lodged on 5‑11‑2002 and it is mentioned that the incident took place about 5/6 days earlier but the same is belied by the medical evidence and the applicant's case requires further inquiry in order to ascertain guilt of accused the same is covered as envisaged under section 497(2), Cr.P.C. Resultantly, the applicant/accused is entitled to the concession of bail and the same is extended to him subject to his furnishing surety in the sum of Rs.2,00,000 and P.R. Bond in the like amount to the satisfaction of the trial Court.
9. N.H.Q./B‑4/K Bail granted.