1. ' FAISAL ARAB, J.--- The applicant, who is facing trial in Crime No,55 of 2001 of Police Station Nasirabad, registered against him for offence punishable under section 302, P.P.C., seeks bail on the ground of hardship claiming to be a juvenile.
2. ' In short, the prosecution case, as per F.I.R. Lodged on 27-5-2001 at 7-45 p.m., by complainant Ali Sher Thalo, is that on fateful day i,e,, on 27-5-2001 at 1830 hours the present applicant, armed with a pistol, fired at Muhammad Khan alias Altaf Hussain son of the complainant and wounded him.
3. Such F.I.R. Was lodged by the complainant. Later on, Muhammad Khan succumbed to the injuries and eventually died.
4. ' The applicant, after his arrest, was sent to stand trial in the Court of 1st Additional Sessions Judge, Larkana, where an objection was raised on behalf of the applicant that he is a minor and should be tried under the Juvenile Justice System Ordinance, 2000. The trial Court accepted the plea of the applicant and ordered that he be tried under the said Ordinance. Against such order the complainant filed revision before this Court, which was dismissed. Whereafter, the complainant filed petition before the Supreme Court. While the said petition was pending, the Supreme Court on 26-6-2003 passed an interim order suspending the trial of the case under Juvenile Justice System Ordinance. The Supreme Court then finally decided the said petition vide order, dated 25-4-2005 and held that the applicant was sixteen and half years of age at the time of commission of the alleged offence, by accepting the applicant's date of birth contained in the applicant's school leaving certificate. After the decision of the Supreme Court, the applicant moved an application for bail under the provisions of Juvenile Justice System Ordinance, which was dismissed, against which the present applicant has come before this Court for grant of bail.
5. ' It is an admitted position that the applicant was arrested on 5-7-2001 and exactly a period of four and half has elapsed since his arrest. The present application for bail is moved under section 10(7)
(a) of the Juvenile Justice System Ordinance, 2000, which reads as follows:-- "10. Arrest and bail.--- (1) Where a child is arrested for commission of an offence, the officer incharge of the police station in which the child is detained shall, as soon as may be, inform:--
(a) The guardian of the child, if he can be found, of such arrest and inform him of the time, date and name of the Juvenile Court before which the child shall be produced; and ,(b) the concerned Probation Officer to enable him to obtain such information about the child and other material circumstances which may be of assistance to the Juvenile Court for making inquiry.
6. (2)
7. (3)
(4) ..
(5) ..
8. (6)
(7) Notwithstanding anything contained in the Code and except where a Juvenile Court is of the opinion that the delay in the trial of the accused has been occasioned by an act of omission of the accused or any other person acting on his behalf or in exercise of any right or privilege under any law for the time being in force, a child who, for commission of an offence, has been detained, shall be released on bail,--
(a) if, being accused of an offence punishable, with death has been detained for such an offence for a continuous period exceeding one year and whose trial for such an offence has not been concluded;"
9. ' Mr. Asif Ali Abdul Razak Soomro has relied on the case of Raja Amanullah and another v. The State 2002 M LD 1817; Attaullah v. The State 2004 PCr.LJ 326 and an unreported decision of this Court in Criminal Bail Application No,733 of 2005.
10. ' In Raja Amanullah's case (supra) it was held by this Court that the Juvenile Justice System Ordinance, 2000 has been promulgated, inter alia, to provide for protection of children involved in criminal litigation and their rehabilitation in society. Being a beneficial legislation for the welfare of the children involved in criminal offences, it has to be given liberal interpretation to achieve its objects i,e,, to create conditions and environment so that children below the age of 18 years involved in criminal litigation may be provided an opportunity to become useful and honourable members of the society. The offence involved in the said case was also under section 302, P.P.C.
11. And bail was granted.
12. ' In the case of Attaullah (supra), which too was a case under section 302, P.P.C. It was held that section 10(7)(a) of the Juvenile Justice System Ordinance contemplates that notwithstanding anything contained in the code and except where a Juvenile Court is of the opinion that the delay in trial of the accused has been occasioned by an act or omission of the accused or any person acting on his behalf, the accused shall be released on bail if he has been detained for a continuous period exceeding one year and his trial has not yet been concluded.
13. ' Mr. Ahsan Ahmed Qureshi, counsel for the complainant, while opposing the bail application has relied upon Waseem Ullah v. The State 2004 SCM R 860, in which bail was refused by the Supreme Court to a Juvenile accused who was also accused of committing offence of murder.
14. ' Mr. Asif Ali Abdul Razak Soomro, while relying on the unreported decision of this Court in Criminal Bail Application No,733 of 2005, has stated that this Court in the said unreported case has discussed proviso to section 10(7) of the Ordinance in some detail narrating situations, in which the Courts ought to refuse bail. In the said unreported case my learned brother Ali Saindino Metlo, J.
15. After discussing section 10(7) granted bail. The observations from the said unreported judgment are reproduced as follows:-- "Under section 10(7) of the Ordinance, a child accused of an offence punishable with death becomes entitled to bail if he has remained in custody for a continuous period exceeding one year and his trial has not concluded. However, in view of the proviso to the subsection, `the 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 for life'. The perusal of record shows that the charge was framed on 3-12- 2003 i,e,, after more than one and half years of the arrest of the applicant, for which delay he was not responsible. He is also not a previous convict. According to the post-mortem examination report the deceased had sustained only one injury caused by a single fire. Thus, the applicant had not acted desperately or brutally and in such circumstances it cannot be said that he is involved in an offence of 'serious, heinous, gruesome, brutal, sensational in character or shocking to public morality'. The words 'serious' and `heinous' will have to be read in conjunction with words `gruesome, brutal, sensational and shocking' and not in isolation so as to say that the benefit of bail cannot be extended in a serious or heinous crime, because it cannot be said that an offence which is punishable with death is not serious or heinous. As a matter of fact only serious and heinous offences entail capital punishment. When the provision is for the grant of bail in offences involving capital punishment, it cannot be refused merely on the ground that the offence was serious or heinous. In order to refuse bail to a child on the ground of delay in trial, he must be shown to be involved in an offence. Which, in the opinion of the Court, is 'serious, heinous, gruesome, brutal, sensational in character or shocking to public morality' and not merely 'serious or heinous'."
16. ' Relying on the said decision of Mr. Asif Ali Soomro contends that as the situations provided in the proviso to section 10(7) of the Ordinance are also not attracted in the present case, the bail be granted as done in the above referred unreported case. He has also contended that in the case of Waseem Ullah (supra) bail was rejected as the motive for commission of the crime was that an Advocate had been conducting and pursuing in Court the cases on behalf of the opposite party in the discharge of his professional duties and that accused had no personal enmity with the Advocate, but only on account of discharge of his professional duties he was murdered, which in itself amounts to an act which is gruesome, sensational and shocking to public morality on the part of the accused and therefore, in that case the proviso to section 10(7) was fully attracted. In this background the Supreme Court refused bail. Whereas, in the present case though subsequently the deceased died of the pistol shot, but such an act cannot be said to be heinous, gruesome, brutal, sensational in character or shocking to public morality, as has been defined by this courting Criminal Bail Application No,733 of 2005.
17. I have considered all the aspects of the matter which were made basis for seeking bail in the present case. The objects of providing a separate criminal trial to prisoners under the age bf 18 years have been fully discussed in the case of Raja Amanullah and another (supra). The whole purpose of enacting Juvenile Justice System Ordinance would be defeated if the criteria provided in the general law is also applied in the present case for grant or rejection of bail. The accused is in jail exactly for four and half years. It was the complainant who objected to the trial of the accused under Juvenile Justice System on the ground that he was major at the time of commission of alleged crime. The matter was taken by him upto the Supreme Court. After years of the litigation the Supreme Court held that the accused was minor at the time of the commission of the offence and should be tried under Juvenile Justice System Ordinance. In four and half years of his custody, about four years' period can safely be attributed to the delay, which has not been caused by the accused or the persons acting on his behalf.
18. ' It is also pertinent to note that the sole eye-witness of the alleged incident, namely, Arz Muhammad has filed his affidavit before this Court, in which he has stated that he has not seen anybody killing Muhammad Khan alias Altaf Hussain, and that he has not made any statement before police or before any Magistrate with regard to the presence of the accused at the scene of the crime.
19. ' In view of the above statement given by Arz Muhammad, the sole eye-witness of the alleged incident, it also becomes a case of further inquiry. Learned State counsel has also conceded to the above position that in terms of the Supreme Court judgment this case has to be tried under the provisions of Juvenile Justice System Ordinance and that the applicant has remained incarcerated for four and half years.
20. ' In the circumstances, the applicant is enlarged on bail upon furnishing surety in the sum of Rs,3,00,000 and P.R. Bond in the like amount to the satisfaction of the trial Court.