AFSAR ZAMIN vs THE STATE

ORDER

The applicant and three others were arrested on 17-1-2001 by Bin Qasim Police for an offence punishable under section 380/34, P.P.C. And then F.I.R. Was lodged at the said police station on the same day at 4-10 p.m.

2. It is stated in the F.I.R. That the , stolen copper parts of power machine were secured from the possession of accused persons on the spot.

3. Main contention raised on behalf of the applicant is that the applicant is a minor aged 17/18 years. Learned State Counsel Mr. Javed Akhtar opposed the bail on the ground that the point of age has not been accepted by the trial Court as also by the learned Additional Sessions Judge.

4. Order passed by the Courts below indicates that on the point of age of the applicant, the opinion of police recorded in the Hulia Form usually submitted alongwith report under section 173, Cr.P.C.

(Challan) has weighed with them and they have overlooked the significance assigned to this question under the law. Under section 2(b) of the Juvenile Judicial System Ordinance, 2000 (hereinafter to be referred to as the Ordinance) 'child' has been defined to mean a person who, at the time of commission of an offence, has not attained the age of 18 years. Indeed, from this point of view the opinion expressed by police was enough to invoke the attention of learned trial Court to the issue. According to police, the age of applicant was 17/18 years that is to say between 17 and 18 years. Ex facie. The aforesaid opinion of police was sufficient to attract the provisions of the Ordinance as even one day less than 18 years would bring the accused within the aforementioned definition of 'child'. Nevertheless, it may be kept in mind that at any time the point of young age is agitated on behalf of an accused person the Court is under a statutory obligation under section 7 of the Ordinance to 'record a finding after an inquiry, which shall include a medical report, for determination of the age of the child. In such circumstances the Courts would be committing an error if they place unrestricted reliance solely on Hulia Form etc. About the age of an accused. In order to foster justice they have to follow, essentially, the procedure laid down in section 7 of the Ordinance.

5. It would, however, be inapt to assume that an exercise under the provisions of section 7 of the Ordinance is to be undertaken at the stage of trial and not in bail proceedings It is significant to note that under the law a child enjoys some protection in the matter of his detention and bail in certain eases as contemplated under section 10 of the- Ordinance and the solemn object of law would be frustrated if the question of determination of age is not adjudicated at the earliest stage and the bail plea is not examined from that point of view.

6. It is to be emphasized that under clause (c) of subsection (7) of section 10 of the Ordinance a child shall be released on bail if he is accused of an offence punishable with less than imprisonment for life and has been detained for a continuous period exceeding four months and the trial has not concluded subject, of course, to the conditions laid down in the proviso thereto and that the delay in the trial is not occasioned by or on his behalf. In the instant case applicant is accused of an offence under section 380, P.P.C. Which is punishable with 7 years and he is in custody for a period of more than 7 months. Had the point of age been determined in accordance with law as a prerequisite condition a statutory right would have accrued in his favour for release on bail, since it was stated at the bar that even the charge has not yet been framed. Besides, admittedly, the police, in the said Hulia Form, has not stated in express terms that the applicant's age was 18 years. The Ordinance is aimed at extending protection to the children involved in criminal litigation and their rehabilitation in society. In a way, it safeguards the human rights of a section of society who deserve reasonable concession because of their tender age, therefore, the Ordinance is to be construed liberally in order to achieve the said object. In view of the figures 17/18 years and in absence of any medical report to the contrary the benefit arising out of the circumstances is to be extended to the applicant. He is, as such, entitled to bail.

7. Consequently, the application is allowed. The applicant be released on bail on furnishing one surety in the sum of Rs,50,000 and executing P.R. Bond in the like amount to the satisfaction of the trial Court. While parting with the order it is directed that the subordinate Courts shall invariably take into consideration the above stated points. In particular in the instant case the exercise of determining the age shall be undertaken before commencement of trial.