' CHAUDHARY MUHAMMAD TAJ, J.---This appeal has been filed to challenge the judgment passed by the Shariat Court of Azad Jammu and Kashmir on 7-5-2004 whereby the accused-respondents were released on bail.
2. The facts are that six cases under F.I.R. No.7 of 2004 under section 14 of the Offences Against Property (Enforcement of Hudood) Act, 1985, F.I.R. No.16 of 2004 under section 14 of the Offences Against Property (Enforcement of Hudood) Act, 1985, F.I.R. No.63 of 2004 under sections 430-A, 435 and 436 A.P.C., F.I.R. No.66 of 2004 under sections 435 and 436, A.P.C. And section 14 of the Offences Against Property (Enforcement of Hudood) Act, 1985 F.I.R. No.67 of 2004 under section 457, A.P.C.
And section 14 of the Offences Against Property (Enforcement of Hudood) Act, 1985, F.I.R. No.68 of 2004 under sections 435, 436 and 511, A.P.C. Were registered at Police Stations City and Civil Secretariat, Muzaffarabad. It was stated on behalf of the State that all the cases have been challaned before the competent Court of jurisdiction. The accused-respondents applied for their bail before the trial Court through applications which were dismissed. They moved before the Additional District Court of Criminal Jurisdiction, Muzaffarabad where their applications were also dismissed. However, a further appeal before the Shariat Court was accepted and the respondents were allowed bail through the order impugned herein.
3. Raja Ibrar Hussain, the learned Advocate-General, raised following points in support of the appeal:--
(i) That the judgment and order passed by the Shariat Court of Azad Jammu and Kashmir is against facts and law. It was explained that the order passed by the Shariat Court does not show that for which case the respondents were allowed bail out of six cases separately registered against them and challenged before the competent Court of jurisdiction. It was also added that only one bail application for all the cases were moved which is not only against law but renders the order void ab initio;
(ii) that the accused-respondents are involved in heinous offences in all the six cases on the basis of strong prima facie cases resting on evidence and incriminating material collected by the prosecution. The learned Judge in the Shariat Court also held that the accused-respondents were involved in the cases carrying heinous offences but strangely the accused-respondents were enlarged on bail;
(iii) that the only ground given by the learned Judge in the Shariat Court was that the accused- respondents were below the age of 16 years as such the prohibitory clause of section 497, Cr.P.C. Is not attracted, therefore, held them entitled for the grant of bail; and
(iv) that the order is arbitrary, capricious and against the accepted principles of law established by the superior Courts.
4. Mr. Mujahid Husain Naqvi, who appeared on behalf of the respondents, while controverting the arguments addressed by the learned Advocate-General, argued in the following manner:--
(i) That the accused-respondents were minors below the age of 16 years at the time of commission of offence as such could not be tried by the ordinary Courts but a special law has been enacted for this offence which was also referred before the Shariat Court of Azad Jammu and Kashmir and the Courts below:
(ii) that none of the offences carries the sentence of more than seven years. It was explained that in all offences charges against the accused-respondents, the sentence provided is below seven years except section 436, A.P.C. Which is not attracted, keeping in view the facts involved, therefore, it was within the discretion of the Court to enlarge them on bail; and
(iii) that the accused-respondents are students with a brilliant career would suffer irreparable loss towards their education in case the concession of bail is recalled. The learned counsel referred to the following authorities in support of his assertions:--
(1) Zahid Paras and another v. The State (1995 PCr.LJ 5), (2) Fazlur Rehman v. The State (PLD 1981 SC
(AJK) 10), (3) Mst. Hajra Bibi and another v. The State (1992 PCr.LJ 796) and (4) Muhammad Rafique v. The State (PLD (1985 Sh. C (AJ&K) 38).
5. We have heard the learned counsel for the parties and also gone through the record. The appeal has been filed against the order passed by the Shariat Court which has accepted and allowed bail to the accused-respondents but the same does not show for which case the accused- respondents were granted bail. Neither the facts of that particular case were given nor those were discussed in the order. It is also interesting that against the procedure the bail was allowed on one bail application for all the cases.
6. The learned Judge in the order did not discuss the merits of each case to arrive at a conclusion that whether the accused-respondents were entitled to the concession of bail in the light of facts and law. The Court below held in the order that the cases alleged against the accused persons are sensational, shocking and heinous in nature but probeeded to allow bail without giving any reason whatsoever.
7. The only ground made basis for the grant of bail was that the accused-respondents were below the age of 16 years and the prohibitory clause of section 497, Cr.P.C. Was not attracted.
8. While considering a bail matter of an accused involved in a non-bailable offence, if there appear reasonable grounds for believing that he is guilty of an offence punishable with death or imprisonment for life, he shall not be released on bail unless the case is covered by any of the provisos maintained under subsection (1) of section 497, Cr.P.C. But if it appears to the Court at any stage of the investigation, inquiry or trial, as the case may be, that there are not reasonable grounds for believing that the accused has committed a non-bailable offence but that there are sufficient grounds for further inquiry into his guilt, the accused shall be released on bail under subsection (2) of section 497, Cr.P.C. But the fact that in a non-bailable case if the prohibitory clause is not attracted it does not mean that the accused gets entitlement to be released on bail.
The offence remains non-bailable and the discretion of the Courts are to be exercised keeping in view the merits of the case based on the principles governing the bail matters.
9. In the present case it was claimed that the accused-respondents were minors at the time of commission of offence, therefore, the concession of bail was allowed in their favour. The learned Judge in the Shariat Court failed to discuss the merits of the case rather held that cases against the accused-respondents as heinous in nature. A perusal of the record also shows that strong prima facie cases on the basis of evidence and incriminating material were disclosed against them. It may also be added that age per se in isolation of other facts and circumstances is hardly a ground for the grant of bail. Reference may be made to a case reported as Muhammad Sharif v.
Shafqat Hussain alias Shaukat and another (1999 SCM R 338) where the facts were similar to the case in hand and the Supreme Court of Pakistan made following observations:-- "(4) It was further urged before us on behalf of the respondent that this case was covered by proviso (1) to section 497, Cr.P.C. Inasmuch as the respondents was less than 16 years of age and therefore he was entitled to the grant of bail. In support of this plea, reliance has been placed on the date of birth of the respondent as entered in the school record, which indicates that the respondent was born on 10-5-1983 and was a student of 10th class whereas the prosecution has placed reliance upon the birth entry of the respondent as recorded in the office of the Union Council, which shows that the respondent was born on 10-4-1982. Normally there is a tendency not to get the correct date of birth recorded in the school record on account of the future benefits in service etc. In this view of the matter, we are of the view that the date of birth as entered in the record of the Union Council is correct and according to this date of birth, the respondent was 6 days less than 16 years of age on the date of occurrence. Furthermore, it has been time and again laid down that merely because a person is 16 years of age would not make him entitled to the grant of bail automatically. Each case to be examined in the light of its own facts and the discretion has to be exercised judicially and not arbitrarily. The learned counsel for the respondent contended that the challan in this case has been submitted and the trial is likely to commence and therefore at this stage bail should not be cancelled. The contention is devoid of force in the circumstances of this case. Every case is to be examined in the light of its own facts and the crucial question arising for determination would be as to whether a person is entitled to the grant of bail under the provisions of section 497, Cr.P.C. Therefore, no hard and fast rule can be laid down that the bail should not be cancelled merely because the trial has commenced or is likely to commence.
' The proposition came under discussion before this Court in a case reported as Shabbir Hussain v.
The State PLD 1982 SC (AJ&K) 100 where the same was resolved in the following words:-- "(14). It may be stated here that the proviso to section 497, Cr.P.C. Enabling the Court to release any person under the age of 16 years or any woman or any sick or infirm person is not mandatory. The word `may' in it clearly indicates that this matter is in the discretion of the Court concerned and each case must be considered on its merits. In the circumstances of the case we are unable to persuade ourselves to disturb the discretion exercised by the High Court as it is neither perverse nor illegal."
' Similar view was expressed by the Shariat Court of Azad Jammu and Kashmir in a case titled Tahir-ur-Rehman v. The State (1984 PCr.LJ 171), where it was held as under:-- "After giving my utmost consideration to the arguments addressed at the bar and taking into consideration the material on the record and other facts and circumstances of the case, I am of the opinion that the petitioner, at this stage, does not deserve to be released on bail and the trial Court has committed no error in refusing the same to him. The mere fact that the petitioner was few months below the statutory age mentioned in the aforesaid proviso to section 497 (2), Cr.P.C. Is not by itself a ground for freeing him on bail. The proviso under reference is not mandatory in nature but it only vests a competent Court with the discretion to let off even a person accused of an offence punishable with death or transpOrtation for life, on bail which discretion is to be exercised judiciously and not arbitrarily by it after undertaking careful appraisal of the facts and circumstances of the case before it.
' In other words, the aforesaid proviso does not bestow a right on an accused person to claim concession of bail and all that it does for the benefit of such accused person is that the handicap imposed by its main section to the grant of bail to him, is removed and it is left open to the discretion of the Court to free him on bail if the facts and circumstances of the case so justify ' In a case reported as Syed Kamran v. State 1996 PCr.LJ 537 the proposition was resolved in the following words:-- ' With utmost respect it is humbly submitted that the case-law cited by the learned counsel for the applicant is not attracted to the facts and circumstances of this case. It is discretion of the High Court to grant or not to grant bail on the ground of age. Furthermore bail cannot be claimed as a matter of rights on account of tender age. Prima facie, there is ample evidence to connect the applicant/ accused with the alleged offence. Acting as a dare-devil he along with the two co- accused in broad-daylight armed with weapons entered into the house of the complainant to commit a heinous offence. Commission of such serious offences has become very common particularly in urban areas like Karachi city These are the facts of life which Court cannot loose sight of and strict view of such happenings is required to be taken by the Courts of this Province...........
10. In view of the above state of law, we are of the view that the judgment passed by the Shariat Court is not maintainable and is liable to be set aside for the following reasons:--
(1) That the order does not disclose for which case out of six cases the concession of bail was allowed;
(2) That the order does not disclose the reasons for allowing the bail to the accused-respondents;
(3) That only one application was moved for grant of bail for all the cases which was accepted as granted for all the cases without mentioning the facts and discussing the merits for each case. It may be mentioned that for each case separate application was required, the fact alone was sufficient for dismissal of the application. Additionally, neither the facts nor the principles governing the bail were taken into consideration;
(4) That the age, the sole ground taken into consideration, per se in isolation of facts and circumstances of any case cannot be held to be considered a valid ground for grant of bail.
11. In view of the above, the, appeal is accepted and the to the accused-respondents is cancelled.
The case-law cited by the learned counsel for the respondents, with its distinct facts, is not applicable to the case in hand as such not discussed. This order, however, will not debar the accused to renew their applications for bail on any new ground.
Bail cancelled.