UMER AHAD alias MUHAMMAD RAFIQUE vs SARFRAZ KHAN AND ANOTHER
The petitioner filed a miscellaneous petition seeking the restoration of his dismissed Leave Petition, which had been dismissed for non-appearance. Finding the petitioner's explanation satisfactory, the Supreme Court restored the petition and proceeded to hear it on merits. On merits, the petitioner challenged the High Court's finding regarding his age, determined on the basis of a Medical Board report rather than a municipal birth certificate, in a bail cancellation matter relating to a murder case. The Supreme Court held that observations made by the High Court in a bail matter regarding the accused's age are merely tentative in nature and do not prejudice the trial. The Court ruled that it remains open to the petitioner to raise the question of his age and the jurisdiction of the court before the trial court. Consequently, the petition for leave to appeal was dismissed with the said observation.
- Can a leave petition dismissed for non-appearance be restored upon the petitioner's explanation?
- Are observations regarding the age of an accused made in a bail matter tentative in nature?
- Is an accused entitled to raise the question of his age and trial court jurisdiction before the trial court despite prior observations by the High Court in bail proceedings?
ORDER
M. S. H. OURAISHI, J.-The petitioner, by this miscellaneous petition, seeks the restoration of his Leave Petition which had been dismissed by Court for non-appearance on 9-4-1984. He has submitted that he was present in Court on that date but could not know when the case was called and when he enquired towards the end of the day, he was told of the petition having already been dismissed.
Since the petitioner was not represented, we accept his prayer and restore the Leave Petition.
2. On merits, the grievance of the petitioner is that the learned Judge of the High Court has, in an application moved for cancellation of his bail in a murder case, decided the question of his age thereby fixing the Court which would have jurisdiction to try the case. The petitioner's case on the basis of a birth certificate issued by the Badin Municipality was that he being less than 16, the matter would fall within the jurisdiction of the Juvenile Court. The learned Judge, however, on the basis of the report of the Medical Board that he was about 19 years of age, directed that his case should proceed before the ordinary Court. The observations of the High Court having been made in a bail matter, the same could be treated to be only tentative in nature. It will be open to the petitioner to raise before the trial Court the question of his age and the jurisdiction of that Court.
With this observation, the petition for leave to appeal is dismissed.