WAQAR ULLAH KHAN vs Mst. MUSHTARI JANA and anothers

' Waqarullah Khan has applied for his release on bail in case F.I.R. No, 769, dated 6-9-1998 registered at Police Station, City Bannu, under section 302/324/148Y149, P.P.C. Earlier his application for his release on bail was dismissed by the Senior Civil Judge/City Magistrate by order, dated 16-1- 1999 and then by, the learned Additional Sessions Judge, Bannu on 27-3-1999.

2. The petitioner is undoubtedly directly charged in the F.I.R. Along with his co-accused for firing at and injuring A Mst. Baskhana, who lodged the report in the Emergency Ward of Civil Hospital, Bannu and as a result of the injuries subsequently died the same day. The sole ground on which the petitioner seeks bail is of his tender age. In support of this plea, the petitioner along with his petition filed his age certificate issued by the Principal, Government High School No,2, Bannu according to which he is studying in the 8th Class and his date of birth is 12-4-1985. The occurrence having taken place on 6-9-1998, the petitioner on the basis of the said certificate was 14 years and about 5 months old. When this petition came up for hearing on 7-6-1999, the learned counsel for the complainant objected to the authenticity of the said certificate claiming that the accused- petitioner was of 18 years. To resolve the controversy, this Court ordered examination of the accused-petitioner through ossification test. The Medical Board comprising of the Medical Superintendent, Dental Surgeon and Orthopedic Surgeon, after holding the prescribed test opined that on the date of examination i,e, 15-6-1999 the accused-petitioner was about 15 years of age.

Thus, on the basis of the test conducted by a competent Medical Board the accused-petitioner is of tender age and on the date of occurrence he was even less than 14 and a half years of age, congruous to the record provided by the Principal of the School referred to above.

4. Under the First Proviso to subsection (1) of section 497, Cr.P.C. The competent Courts have the discretion to direct that any person under the age of 16 years who is accused of non-bailable offence may be released on bail. In Haji Fazal Illahi v. Mis Farrah Naz and another (1979 SCM R 109) it Was held by the august Supreme Court that as a policy of law very young persons may be granted bail in absence of some circumstances disentitling him to grant of such bail. In Siraj Din v.

Saghiruddin alias Goga and another (1970 SCM R 30) the Supreme Court refused to interference with the discretion exercised by the High Court allowing bail on the basis of minority to the accused-petitioner holding that age of accused on X-Ray Examination found to be 16/17 years was a good ground for bail even in case of capital offence. In Muhammad Anwar-petitioner v The State- respondent (1983 SCM R 1001) the august Supreme Court allowed bail to the accused on the basis of tender age in a case entailing capital punishment.

4. Under section 306, P.P.C. Qatal-i-Amad' shall not be liable to Qisas when the offender is a minor or insane and under section 308, P.P.C. Where an offender is guilty of 'Qatal-i-Amad' not liable to Qisas under section 306, P.P.C. He shall be liable to Diyat. Thus, prima facie the offence committed by the petitioner would fall under section 306, P.P.C. Qatal-i-Amad' not liable to Qisas and on that share as well the petitioner is entitled to the concession of bail. Under Second proviso to section 308, P.P.C, the punishment of imprisonment extending to 14 years as Tazeer' is provided for a minor accused who has attained sufficient maturity as to realize the consequences of his act but so far nothing has been bought on record that the petitioner was mature enough to realize or weigh the consequences thereof which is yet to be determined at the trial. In the absence of any material to the contrary coupled with the fact that according to the F.I.R. The accused fired at the deceased on the direction of his father Hafizullah, commission of the offence by the accused with independent intent is open to further probe at the trial after recording the evidence. In this view I am fully fortified by the observations in Muhammad Sudheer v. State (1998 M LD 1994). In Muhammad Nadeem v.

The State 1998 M LD 1537 in a non-boilable offence punishable with Diyat grant of bail was held to be a rule and its refusal an exception.

' In the circumstances without further dilating upon the merits of the case I direct release of the accused-petitioner on bail, subject to his furnishing bail bond in the sum of Rs, 3,00,000 (Rupees three Lacs) with two sureties each in the like amount to the satisfaction of the Illaqa Judicial Magistrate, who is to ensure that the sureties are local and possess sufficient means.