1. DORAB PATEL, J.-Mushtaq Hussain was shot dead at Sakarparian (Islamabad) on 22-6-1978, and the F. I. R. Was lodged by a Police Constable, Abdul Ghafoor, who claims to have heard the report of a gunshot, rushed to the place of occurrence and seen the respondent fired three shots at Mushtaq Hussain, deceased. Further according to the petition for leave "the F. I. R. Also stated that the respondent (accused) informed, the first informant and the other persons; that she had been betrothed to the deceased but except her father all her family members including herself were against the proposed marriage. With the deceased and she by deception had called the deceased and finished him." In view of this F. I. R. The respondent was arrested in due course and as her application for bail was dismissed by the Sessions Court, Rawalpindi, she applied for bail in the Lahore High Court. The respondent had pressed for bail in the High Court on two grounds. The first was that the cage against her was false and reliance in this connection was placed upon the fact that the relations of the deceased were not supporting the prosecution case. The second ground on which bail was pressed was the proviso to subsection (1), of section 497, Cr, P. C. (hereinafter called the said proviso) which prescribes "that the Court may direct that any person under the age of sixteen years or any woman or sick or infirm person accused (of an offence punishable with death or transportation for life or imprisonment for ten years) be released on bail." The respondent's contentions in this respect were that she was just under sixteen years of age at the time of the occurrence and that she was not in good health, and she also sought bail on the ground of her sex.
2. The petitioner also opposed the ground of bail on two grounds. The first was that it was not a fit case for the grant of bail, because the crime was heinous and premeditated, the second was that the respondent could not bring her case under the said proviso, because she was just over sixteen years of age at the date of the occurrence, and her claim to be ill was also repudiated as false.
3. Sidhwa, J., who heard the bail application, rightly declined to go into the conflicting claims of the parties about the merits of the case. He, however, examined the question whether the respondent had brought her case within the meaning of the said proviso, and it would appear that both the parties had, in support of their respective contentions, relied only on documentary evidence, such as School Leaving Certificates. Now, according to the School Leaving Certificate filed by the respondent, she was just under sixteen years of age at the date of the occurrence, whilst according to the certificate produced by the petitioner, she was just over sixteen years at the date of the occurrence. In this connection the learned Judge observed: "On behalf of a complainant Mr. M. B. Zaman, Advocate, submitted that though the petitioner was a lady, she was not below 16 years of age but 16 years 2 months old at the time of the commission of the offence. In this connection, he drew my attention to a Certificate of the Headmistress, Government Girls High School No. I, Rawalpindi, dated 5-7-1918 ------------ As in the High Court, both the Darned counsel advanced arguments on the merits of the case, but we will refrain from examining them as the learned Judge had granted bail solely because he was of the view that the respondent had brought her case within the said proviso. Now it is clear even from a casual perusal of the proviso that it confers discretion upon the Court in the matter of granting bail when the person seeking bail is under the age of sixteen years or is a woman.
4. Secondly, it is not disputed that the respondent is a young girl, therefore, there cannot be any doubt that the respondent had, prima facie, brought her case within the ambit. Of the said proviso, and this means that the petitioner can succeed only if he can show that the learned Judge had exercised his discretion in the instant case perversely or under some misapprehension of the law.
5. Therefore, we invited Mr. Zafar Mahmood to show us the legal error in the impugned order.
6. Learned counsel submitted that the petitioner was guilty of a heinous crime and had used a firearm and he relied on this Court's judgment in Sultan Khan v. Amir Khan and another (PLD 1977 SC 642). Now, as submitted by learned counsel, the ratio of this case is that bail is not normally granted in murder cases in which the murder was committed by the use of a firearm. We respectfully agree with the view taken in this judgment, but it is completely irrelevant to the petitioner's case because the respondent has been granted bail in view of the said proviso and the only question is whether the discretion thus exercised in her favour had been exercised capriciously or illegally and on this aspect of the case, the judgment does not throw any light whatsoever.
7. On the other hand, in Siraj Din v. Saghir-ud-Din alias Goga and another (1970 SCMR 30), this Court refused to interfere with the discretion exercised by the High Court in favour of an accused charged for murder, because of his youth. In refusing to grant leave against the order of the High Court, Cornelius, C. J., observed: .
8. "This accused, who has been granted bail by the High Court is evidently a minor. The age based on X-ray examination is between 16 and 17 years. That is a ground on which bail may be granted even in a case of a capital offence, and it is clear that there has been no excess of power, or irregularity in the exercise of discretion."
9. We would reafirm the view taken in these. Observations, and we have further to observe that the case of the respondent before us is stronger than that of the respondent in- the case cited, because in addition to being less than seventeen years old, the respondent, in the instant case, is a girl, therefore, no case whatsoever has been made out for interfering with the exercise of discretition by the High Court in the respondent's favour.
10. Mr. Zafar Mahmood then referred us to this Court's judgment in Shahbaz Tufail v. The State (1978 SCMR 235), but this case is distinguishable both on the law and on the facts, because the petitioner had sought leave against the High Court's order refusing him bail, and this Court declined to interfere with the exercise of discretion by the High Court. The judgment is also distinguishable on the facts, because the medical evidence showed that the petitioner was not even a minor.
11. Therefore, this judgment' is of no assistance whatever to learned counsel's submissions.
12. Learned counsel then referred us to judgments of the Lahore High Court reported in Abbas v. The State (1977 P Cr. L J 421), in Muhammad Yusaf v. The State (1977 P Cr. L J 403), and in Abdul Sattar v.
13. The State (1977 P Cr. L J 905), because in all these cases, the learned Judges had rejected the plea of the petitioners for bail, although the pleas were pressed, as in the instant case, on the ground that the petitioners were minors. These cases are not relevant on the short ground that the question before us is not whether the respondent should or should not be granted bail, but whether we should interfere with the discretion exercised by the High Court in her favour. And the cases cited are not relevant to this question, because they are judgments of the High Court. However, the unusual order passed in Abdul Sattar's case perhaps supports learned counsel's arguments by parity of reasoning and as we are unable to agree with the view taken in it, we consider it our duty to examine this case.
14. It would appear that the case against the petitioner was that he had stabbed the deceased to death with a knife blow, and, according to the judgment, he had sought bail only on the ground that he was a minor. There was apparently no dispute that the petitioner was only about 13 or 14 years old, yet the learned Chief Justice of the High Court refused bail. As we observed, we cannot agree with this view, but we would make it clear that we should not be understood to mean that bail must be granted in a cases where the petitioner is so young. That is obvious, because the said proviso confers discretion on the Court in the matter of bail even when the applicant is a minor. But this discretion must be exercised in the light of the facts and circumstances of the case and further, the policy of the law is that very young persons should be granted bail in the absence of some circumstances in that case which would disentitle the applicants to the grant of bail. Now, it is clear from the very brief order of the learned Chief Justice that there was nothing in the circumstances of the case which dis--entitled the petitioner to the exercise of the Court's discretion, therefore, we regret our inability to agree with the view taken in this case. Accordingly, it is of no help to learned counsel's submissions.