1. ' NADEEM AZHAR SIDDIQI, J.--- Applicant Sher Shah charged for attempting on the life of complainant Iftikhar Ali Shah in Crime No,23 of 2003 of Police Station Sanjar Bhatti, registered under sections 324, 34, P.P.C. Seeks bail solely on the ground of his being juvenile.
2. ' The allegations against the applicant as per F.I.R. Are that on 11-12-2003 at about 7-00 p.m., the present applicant and his brother co-accused Bashir Shah had called the complainant Iftikhar Shah and his disciple Barkat Ali Siyal at their `Makan' (Gathering place) and served them with meals. Thereafter, the present applicant fired a pistol shot at complainant with intention to kill resulting in causing him fire-arm injury on the right side of his abdomen at waist. The complainant lodged such report with Sanjar Bhatti Police on 12-12-2003 at 0230 hours night.
3. ' The applicant after his arrest filed bail application before the learned trial Court, which was rejected by the learned Sessions Judge, Kamber-Shandadkot on 8-12-2005, whereafter present application has been filed before this Court.
4. ' The learned counsel for the applicant has submitted that the applicant being minor is entitled to concession of bail. He further submits that according to the medical certificate the applicant is presently 17 years and according to school leaving certificate he is 16 years and at the time of incident the applicant was 14/15 years of age. He submits that the applicant is also entitled to the concession of bail in terms of proviso to section 497, Cr.P.C. He further submits that abscondence alone is not sufficient to refuse the bail to the applicant if he is otherwise entitled to the concession of bail.
5. ' The learned Asstt. A.-G., has opposed the bail and supported the order of the trial Court and submits that the applicant is not entitled to concession of bail only on the ground that he was minor at the time of incident.
6. ' Mr. Habibullah G. Ghori, who was present in Court is requested to assist the Court, has submitted that since the applicant was minor at the time of incident he is entitled to concession of bail and referred to section 10 of the Juvenile Justice System Ordinance, 2000. He referred to the case of Afsar Zaman v. The State PLD 2002 Kar. 18; and an unreported case of Wahid Bakhsh Khoso v. The State Criminal Bail Application No,733 of 2005 and Wajid Ali v. The State Criminal Bail Application No,445 of 2005.
7. ' I have heard the learned counsel for the parties and perused the record made available before me as well as the cases cited at the bar. From the medical certificate and school leaving certificate it is established that at the time of incident the applicant was 14/15 years of age. Section 2(b) of Juvenile Justice System Ordinance provides that child means a person who at the time of commission of an offence has not attained the age of 18 years. From the evidence available on record it is established that on the date of incident the applicant was less than 18 years and thus a child within the meaning of section 2(b) of the Ordinance.
8. ' Section 10(7)(c) of the Ordinance provides that a child accused of an offence not punishable with death or imprisonment for life if detained for such an offence for a continuous period exceeding four months and whose trial for such an offence has not concluded is entitled to the concession of bail. However, the Court has to examine that the delay in trial was not due to accused/applicant.
9. The proviso of the section provides that Court may refuse to grant bail if there are reasonable grounds to believe that such child is involved in an offence which in the opinion of the Court is serious, heinous, gruesome, brutal, sensational in character or shocking to public morality or he is a previous convict of an offence punishable with death or imprisonment of life.
10. ' The applicant was arrested on 8-7-2005 and is in custody since last more than four months. In the order of the trial Court it was not stated that trial was not concluded due to acts of the applicant.
11. There is also no allegation that the applicant is previously convicted. From the perusal of the F.I.R. It cannot be said that applicant is involved in an offence of serious, heinous, gruesome, brutal, sensational in character or shocking to public morality. Since the punishment for the offence committed by the applicant is not death the offence cannot be said to be serious and heinous and the case of the applicant is not falling under the proviso of section 10 of Juvenile Justice System Ordinance, 2000. In the reported case of Afsar Zaman v. State PLD 2002 Kar. 18 while granting bail to a child it was held as under:-- "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."
12. ' Since the applicant being minor is entitled to bail in view of the provisions of section 10 of the Juvenile Justice System Ordinance, 2000, mere abscondence will not come in his way. It is true that due to abscondence the applicant shall lose some of his rights but notwithstanding his absconding he being child is entitled to the concession of bail. In reported case of Muhammad Sadiq v. Sadiq and others PLD 1985 SC 182 the Honourable Supreme Court has held as under:--- "In some rare cases notwithstanding abscondence the accused might be released on bail; for examine; when the accused is a woman, a child or a sick and infirm person or when he otherwise become entitled to bail as of right under subsection (2) of section 497, Cr.P.C. And/or the so-called abscondence is satisfactorily explained by the accused so as to establish that in reality it did not amount to abscondence."
13. ' Section 10 of Juvenile Justice System Ordinance, 2000 has given special rights to child accused and the bail cannot be refused to child accused in violation of statutory provisions unless it is shown that the case of applicant falls within the proviso of section 10.
14. The bail was granted to the applicant vide short order, dated 14-3-2006 and the above are the reasons for that.