1. ' FARRUKH ZIA G. SHAIKH, J.--- Applicant Mehar alias Mehaar has filed this application under section 10(7)(a) of Juvenile Justice System Ordinance, 2000, read with section 497, Cr.P.C. For grant of bail, who is required in Crime No,169 of 2003, Police Station, Pano Akil, District Sukkur registered for offences under sections 302, 324, 34, P.P.C., 17(2), Hudood Ordinance and 13-D of the Arms Ordinance.
2. ' Succinctly, facts are that the prosecution case was initiated on the F.I.R. Lodged by Muhammad Sajjan on 26-10-2003 alleging therein that Master Amir Ahmed aged about 30/32 years was his nephew. On 25-10-2003 he, Master Amir Ahmed, Mansoor Ali, Sadooral, Muhammad Sadiq and Ghulam Murtaza proceeded towards Hingoro to their houses. When at about 4-45 p.m. They reached near the land of Haji Iqbal, they found four persons with open faces. Out of whom two were having kalshnikovs while two were armed with T.T. Pistols. Out of them two were identified to be Mehar alias Mehaar (present applicant), Khamiso, were armed with kalashnikovs and two unidentified persons were armed with T.T. Pistols. Two unidentified persons came front of complainant party and tried to rob them and on their resistance, present applicant Mehar alias Mehaar made straight fires with kalashnikovs upon Master Amir Ahmed while co-accused Khamiso made fires with kalashnikov upon Mansoor Ali whereas two unknown persons made fires upon Sadooral with T.T. Pistols. Complainant party gave the names of ALLAH and RASOOL, and thereafter all the accused went away. Thereafter, complainant party found Master Amir Ahmed dead having sustained fire-arm injury through and through on his back and was bleeding while Mansoor Ali was sustained fire-arm injuries on right side of abdomen, right thigh and was bleeding whereas Sadooral was sustained fire-arm injuries on right arm near elbow, which was through and through and also on right side of chest and was bleeding; hence the F.I.R. Was lodged.
3. ' Applicant had moved his application for grant of bail before the trial Court, which was dismissed by order, dated 10-3-2008. Now, he has, therefore, approached this Court with the same prayer.
4. ' Mr. Nizamuddin Baluch, learned counsel appearing on behalf of applicant argued that due to previous enmity, applicant has been falsely involved in this case. He also argued that applicant is declared as Juvenile and his case has been bifurcated from the case of co-accused and is in jail since his arrest and the trial has not been concluded as yet, as such applicant is entitled to the concession of bail as a matter of right particularly under the proviso of section 497(1), Cr.P.C. And section 10(7)(a) of the Juvenile Justice System Ordinance, 2000 as he was minor at the time of incident. He further argued that there is an inordinate delay in lodging of F.I.R., for which no plausible explanation has been furnished, therefore, deliberate consultation cannot be ruled out and that all the prosecution witnesses are related inter se. In the last, he prayed that on the ground of juvenile the applicant be granted bail. In support of the above contention, he relied upon the case reported as Sikander v. The State 2006 PCr.LJ 1648 and Wahid Bakhsh Khoso v. The State 2006 M LD 507.
5. ' Mr. Abdul Haleem Qureshi, learned counsel appearing on behalf of complainant, strongly opposed for the grant of bail to the applicant on the ground that specific role of firing upon the deceased Master Amir Ahmed, has been assigned to the applicant and other prosecution witnesses have also received fire-arm injuries. He argued that applicant is not entitled to seek bail on the ground of minor age as he is involved in a heinous offence. Lastly, he prayed that bail application may be dismissed.
6. ' Mr. Muhammad Iqbal Mahar, learned Assistant Advocate-General, Sindh appearing on behalf of the State vehemently opposed the grant of bail on the ground that the alleged offence, with which, applicant is charged falls within the prohibitory clause of section 497, Cr.P.C., which is punishable with life imprisonment, while adopting the arguments of learned counsel appearing on behalf of complainant, he prayed that the applicant does not deserve any concession, therefore, his bail application be rejected.
7. ' I have considered the arguments advanced by learned counsel appearing for the applicant, learned counsel appearing for complainant and learned Assistant Advocate-General appearing for the State. I have also gone through the material placed on record very carefully.
8. The incident took place on 25-10-2003. According to medical certificate on the day of examination i.e. 18-11-2003 age of applicant was found to be 16 to 17 years and from the certificate it is established that at the time of commission of offence, applicant was a child less than 18 years of age. In the present case, applicant is in custody, since 10-11-2003 whereas it is clearly provided under section 10(7)(a) of the Juvenile Justice System Ordinance, 2000 that a child accused of an offence punishable with death becomes entitled to bail if he remained in custody for a continuous period exceeding one year and his trial has not been concluded. An accused, who comes within the definition of child, is entitled for grant of bail, even if involved in the case punishable with death and such concession is subject to limitations contained in the said Ordinance.
9. ' The case-law referred to above fully supports to the case of applicant and from which it is clear that bail cannot be refused to a child accused unless comes within the limitations contained in the said Ordinance. Moreover, the burden of proof of relying on any exceptions, exemption proviso or qualification is on the party which is relying on the same. The case of the applicant falls within the ambit of the proviso and sufficient material has been placed before the Court, therefore, keeping in mind the above facts and circumstances of the case, applicant is juvenile and is entitled to the concession of bail whereby he was granted bail subject to his furnishing surety in the sum of Rs,1,00,000 (Rs,one lac) and P.R bond in the like amount to the satisfaction of trial Court. These are the reasons of my short order, dated 15-8-2008.
10. ' Application stands disposed of in the above terms.