NOOR KHAN vs THE STATE

ORDER

This is an application for bail made on behalf of applicant Noor Khan who is detained in Crime No.116 of 1989, Napier Police Station under section 302/34, P.P.C. The bail application made on his behalf was rejected earlier by learned VIlth Additional Sessions Judge (South) Karachi, vide order, dated 23-11-1991.

2. On 25-6-1989 at about 10 a.m. Deceased Haji Ismail was stabbed by means of, Chhuris while he was sitting in his office situated at Bhimpura, Karachi. Deceased Haji Ismail was being carried to Civil Hospital, Karachi, when on the way he succumbed to his injuries. Muhammad Ameen son of deceased Haji Ismail rushed to Civil Hospital Karachi, where his 154, Cr.P.C. Statement was recorded, which was subsequently incorporated in 154, Cr.P.C. Book. During the course of investigation the suspects including Gul Bahadur, the servant of Abdullah son of deceased Haji Ismail were arrested. Gul Bahadur who was let off during the course of initial investigation, however, absconded, although he was found to be the main culprit. On 16-9-1990 the present applicant was taken into custody as one of the culprits. On 19-9-1990 the applicant was produced before A.C.M.

Court NOM (South) Karachi, who recorded his judicial confession, wherein he confessed to have joined hands with the servants of deceased Haji Ismail, the absconding accused, for the purpose of committing robbery and in that process deceased Haji Ismail was stabbed.

3. I have heard Mr. M.S. Khattak, learned counsel for applicant and Mr. Abdul Ghafoor Mangi, learned Additional A.-G. For State. The latter has opposed the bail application.

4. The case of the prosecution is mainly based upon judicial confession of applicant recorded three days after his arrest, which statement is inculpatory in nature. Mr. Khattak, learned counsel for applicant has challenged the validity of this statement for the simple reason that it was obtained after third degree methods were applied by the police. He has in particular invited my attention to the body of confessional-statement in which the applicant is said to have stated that he was arrested about one month prior to the recording of this statement. The detailed examination of the evidence and, elaborate documentation of the merits is to 'be avoided at this stage. The confessional statement made by the applicant, if found to be true and voluntary, is sufficient to bring home charge against him.

5. The bail application is also pressed on the ground of young age of the applicant. The photocopy of school leaving certificate shows the date of birth of applicant as 15-4-1976. The applicant was, however, referred for medical examination on the point of age and a Medical Board constituted for the said purpose has certified him to be between 18 and 19 years of age. The best evidence to prove age is that of radiologist and his report should be given preference to a school leaving certificate. The cases reported as Shaikh Hassan v. Bashir Ahmed and another PLD 1966 Pesh. 97, Iftikhar v. The State PLD 1972 Pesh. 27, Yousuf v. The State 1975 P Cr. L J 936 and Ismail v. The State 1983 P Cr. L J 1750 are relevant on this point.

6. Again nobody can claim bail under first proviso to subsection (1) of section 497, Cr.P.C. As a matter of right. This question was examined in cases of Badar-us-Salam v. Muhammad Javed and 2 others reported in 1975 P Cr. L J 1442 and S. Tariq and another v. The State reported in 1990 P Cr. L .J 653, wherein it was :observed that the word `may' used in first proviso to subsection (1) of section 497, Cr.P.C. Does not mean `shall' or `must'. The offence itself was so dastardly and so gruesome that it leaves no doubt in my mind that the applicant is not entitled to the grant of bail even if it is accepted that his case is covered by first proviso to subsection (1) of section 497, Cr.P.C.

7. For the above reasons, I see no merits in this bail application which, is accordingly dismissed.

N.H.Q./N-421/K