1. ' TUFAIL, H. EBRAHIM, J.-Being aggrieved by the order dated 17-8-2010 of the learned V Additional District and Sessions Judge, Karachi (West) in Sessions Case No,645 of 2010, dismissing the bail application of the applicant, this bail application under section 497, Cr.P.C. Has been preferred by the applicant.
2. ' Brief facts of the case as per the record are that F.I.R. No,478/10 under section 302/34, P.P.C. Was lodged by the brother of the deceased against unknown persons, stating that his brother was working in H.R. Cotton Factory for the last 15/16 years and he used to return home between 8 and 9 p.m. On 5-7-2010, his brother did not return home so after waiting some time he went to the factory premises, where the factory incharge informed him that his brother had left after taking salary.
3. Since his brother did not return, therefore, he once again went in the morning to the factory. The gate of the factory was locked and at about 8-30 a.m. When the gate was opened by the chowkidar, one of the labourers informed him that his brother was sleeping inside the factory besides the wall. When he went there with the employees of the factory, he brother was found dead with strangulation marks on his neck and other bruise marks on the body of his brother.
4. ' Syed Shoa-un-Nabi, the learned counsel for the applicant, has contended that the name of the applicant is not mentioned in the F.I.R. And no specific role has been assigned to the applicant. The applicant is 17 years old and is entitled for the benefits as available under the Juvenile Act and no recovery was made from the applicant. Per learned counsel there are no eye-witnesses and even the statements under section 161, Cr.P.C. Of the chowkidar who along with his family were staying the factory premises has not been recorded. Per learned counsel the applicant had visited the factory premises to settle his dues and was arrested by the police for mala fide and ulterior reasons.
5. ' Mr. Abdul Rahman Kolachi, learned Assistant Prosecutor-General, Sindh, has opposed the grant of bail as according to him a sum of Rs,1,400 has been recovered from the possession of the applicant, which was the salary of the deceased. Per learned A.P.-G. On the pointation of the applicant and in the presence of three independent witnesses rope, used in the offence, was also recovered. Per learned A.P.-G. There is no enmity of the police against the applicant and statement of the factory owner was duly recorded under section 161, Cr.P.C. Per learned A.P.-G. The medical board should been constituted to determine the real age of the applicant before granting any benefit to the applicant under the Juvenile Act.
6. ' In rebuttal, the learned counsel for the applicant has argued that there is no judicial confession on the part of the applicant and the recovery of Rs,1,400 was the salary of the applicant and the recovery of rope has been foisted upon him as the same was made after few days of arrest of the applicant. Per learned counsel the applicant is neither a previous convict, nor is likely to tamper with the prosecution witnesses or abscond after the grant of bail. Per learned counsel the life of the young boy will be ruined if he is put behind the bars during the trial. In support of his contentions, learned counsel the applicant has relied upon the following case-law:--
(1) Siraj Din v. Saghir-ud-Din alias Goga and another (1970 SCMR 30);
(2) Bashir Ali v. The State (1971 PCr.LJ 997);
(3) Ghulam Shabbir v. The State (1987 SCMR 1291);
(4) Nisar Ahmad and others v. The State (1997 MLD 2575)
(5) lnayat and another v. The State (1975 PCr.LJ 1271)
(6) Hassan Gul and another v. State and another [PLJ 1999 Cr.0 (Posh) 773] and
(7) Miss Farah Naz v. The State (PLD 1979 Lahore 477)
7. ' I have heard Syed Shoa-un-Nabi, learned counsel for the applicant, and Mr. Abdul Rahman Kolachi, learned Assistant Prosecutor-General, Sindh, at length and have gone through the record and proceedings carefully.
8. ' Admittedly the applicant has not been nominated in the F.I.R. Nor has any role been assigned. As per the record the Factory was locked and there is nothing on record to show that there had been forced entry in the factory premises. Admittedly the applicant was also not the last person to have left the Factory Premises and there was no enmity between the applicant and the deceased. There being no motive for the applicant to commit offence, case against the applicant becomes doubtful more so because of the age of the applicant vis-a-vis the age of the deceased. There are no ocular witnesses to the crime and no cries were heard by any person including the chowkidar of the factory. The question of recovery from the applicant will be decided by the trial court after recording of evidence. Prima facie the applicant being minor under the age of 18 years is also entitled to the benefit of bail, as there is no likely hood that the applicant would tamper the prosecution witnesses.
9. ' For the facts and reasons as aforesaid it is my tentative view that there is no direct nexus between the applicant with the commissioning of the crime and the applicant has made out a case of further enquiry within the meaning of section 497(2), Cr.P.C.
10. ' Accordingly the applicant is granted bail subject to furnishing solvent surety in the sum of Rs,200,000 with P.R in the like amount to the satisfaction of the Nazir of this Court. Needless to mention that the above observations are only tentative and the trial Court shall not be influenced in any manner and the trial court shall decide the case on merit after recording evidence of the parties.