1. ' SHAHID ANWAR BAJWA, J.--- F.I.R. No, 87 of 2011 was recorded at Police Station, Mehrabpur on 22-5- 2011 at 8-00 p.m. Complainant was one Saleemuddin. He stated that his in-laws were residing in Mehrabpur Town and on the fateful day, charity meal had been organized by his relatives and.He had sent his family to attend it. At 1-30 p.m., complainant received information through his brother- in-law that the latter along with a relative and son, Farhan, of the, complainant had gone to take a bath in the canal. The brother-in-law and Sadiq, after taking bath, were sitting under shade of a tree while Farhan was Still taking bath and at 1-50 p.m., they heard cries of Farhan. Brother-in-law and relative of the complainant went there and saw three boys, Rahimdad, applicant No, 1, Mansoor, applicant No, 2 and Waheed, applicant No, 3, were drowning Farhan in water and were ring upon him. The brother-in-law and the relative challenged them; upon which culprits escaped.
2. Farhan was writhing in water and died before any help could be given to him. The relative and the brother-in-law took out the body of Farhan and caught all the three accused persons. The complainant went to Mehrabpur and found dead body of his son. Post mortem of the dead body had been conducted and the accused had been handed over to Police when F.I.R. Was lodged.
3. ' Learned counsel for the applicants made the following submissions:--
(1) Applicants through medical examination have been proved to be of the age of 15 in case of Applicants Nos. 1 and 2, between 15 and 14 years in case of Applicant No, 3 and, therefore, in terms of provisions contained in the Juvenile Justice System Ordinance, 2000, they are entitled to bail.
4. Learned counsel referred to section 299(a), P.P.C. And stated that it defines adult to mean a person, who has attained age of 18 years. Learned counsel submitted that the applicants were not adults.
(2) No enmity between the applicants and the deceased is alleged and the incident might have occurred because three culprits with the deceased might have been playing and it could have been a mere accident.
(3) Learned, counsel next referred to first proviso to section 497, Cr.P.0-. Where it is provided that the Court may direct that person under the age of 16 years or any sick or infirm person accused of an offence punishable with death or imprisonment for life or imprisonment for ten years be released on bail.
(4) Learned counsel referred to section 306, P.P.C. And submitted that when the offender is a minor, Qatle-Amd is not liable to Qisas and, therefore, under' section 308, it is for the Court to decide whether the minor had attained sufficient maturity so as to be able to realize the consequences of his act and it is only then that he is liable to be punished with imprisonment for a term which may extend to 25 years as Tazir.
5. (5)Learned counsel submitted that it is always a case of further inquiry whether a particular person, had achieved sufficient maturity or not and, therefore,. The applicants are entitled to bail.
6. Learned counsel relied upon Usman Ali v. The State, 1996 PCr.LJ 166, Asghar Ali v. The State, 2002 M LD 1566, Mst. Zafrana v. The State, 1997 PCr.LJ 163 and Afsar Zamin v. The State, PLD 2002 Karachi 18.
(6) Learned counsel submitted that liberal interpretation of these provisions is required to be taken.
7. He again relied upon Afsar Zamin v. The State, PLD 2002 Karachi 18.
(7) Learned counsel submitted that the applicants are students and they are entitled to bail on account of tenderness of their age. Learned counsel relied upon Siraj Din v. Safhir-ud-din alias Goga and another, 1970 SCM R 30, Altaf Hussain v. Abdul Muttal and another, 1975 SCM R 139 and Mohammad Anwar v. The State, 1983 SCM R 1001.
(8) Learned counsel submitted that if the .Applicants are kept in further custody, their lives and career shall be ruined.
8. ' Mr. Qurban Ali Malano, learned counsel for complainant, relied upon section 10(7)(a) and (b) of the Juvenile Justice System Ordinance, 2000 and submitted that a child alleged to be involved in an offence punishable with death is entitled to be released only once he has been in custody for one year and if he is allegedly involved in an offence punishable with life imprisonment, he gets such entitlement only after a period of six months. On merits, learned counsel submitted that names of the applicants appear in the F.I.R. With direct role and no previous enmity suggesting mala fides has been alleged. He submitted that it is established both through oral as well as unimpeachable medical evidence that death occurred due to drowning; therefore, it is a case of unnatural death. Learned counsel submitted that in cases of the authorities cited by the learned counsel, dates of arrest and dates of grant of bail have not been stated.
9. ' Mr. Shyam Lai Ladhani, learned A.P.-G., submitted that the applicants are not entitled to bail in view of provisions of section 10(7) of the Juvenile Justice System Ordinance, 2000 and it is for the applicants to plead and prove lack of maturity in respect of second proviso to section 308, P.P.C.
10. And no such pleading had been made before the trial Court.
11. ' I have considered the submissions made by the learned counsel and have also gone through the record.
12. As far as age of the applicants is concerned, the medical certificates annexed at pages 23 to 27 of the file and school certificate issued by the Headmaster of the School prima facie leave no manner of doubt that the applicants are juvenile and all of three are around 15 years of age. The Court below has primarily relied upon section 10(7) of the Juvenile Justice System Ordinance (hereinafter referred to as "the Ordinance") and has declined the facility of bail. Even it has entertained no manner of doubt that the applicants are juveniles. Therefore, it is provisions of section 10(7) of the Ordinance which have to be read along with first proviso of section 497(1), Cr.P.C. Section 10(7) of the Ordinance provides as under:- "S.10(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 or 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.--
(b) (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 concluded;
(c) if, being accused of any offence punishable for imprisonment for life has been detained for such an offence for a continuous period exceeding six months and whose trial for such offence has not concluded; or
(d) who, being accused of any offence not punishable with death, or imprisonment for life, has been detained for such- an offence for a continuous period exceeding four months and whose trial for such an offence has not concluded: ' Provided that where a child of the age of fifteen years or above is arrested, the Court may refuse to grant bail if there are reasonable grounds to believe that such child is involved in an offence which in its opinion 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."
13. ' On the other hand, first proviso of section 497(1), Cr.P.C. Provides as under:-- "Provided that the Court may direct that any person under the age of sixteen years or any sick or infirm person accused of such an offence be released on bail."
14. ' I do not see any contradiction in the two provisions. Section 10 (7) of the Ordinance gives statutory right of bail. This right is available to every child 'as defined in the Ordinance and is to be exercised in his favour irrespective of the nature of offence or the level of comprehension attained by the child provided, however, the conditions setup in section 10(7) of the Ordinance are met regarding a particular quantum of delay in the disposal of the case. It is for this reason that the provision is adorned with words "shall be". On the other hand section 497, Cr.P.C. In its first proviso uses the word "may" and empowers the Court to enlarge a person who is under the age of 16 years to be released on bail even if he is accused of an offence falling within the prohibitory clause of section 497(1), Cr.P.C. It is this way that the two provisions can be reconciled. It may be pointed out that child as defined in the Ordinance is a person who has not attained the age of 18 years whereas in the proviso to section 497(1) the threshold age is 16 years.
15. ' Contention of Mr. Pirzada with reference to section 299(a) P.P.C. And sections 306 and 308, P.P.C.
16. Has been adequately dealt with and explained by Mr.Justice Wahid Bux Brohi (as his lordship then was) in Asghar Ali's case (supra) in the following words:- "As for the contention based on clause (a) of section 12 of Juvenile Justice System Ordinance, 2000, nothing can clearly be spelt out from the conflicting provisions as on one side under section 12 the punishment of death to a child has been expressly barred/excluded while under clause (a) to subsection (7) of section 10 of the same Ordinance, it is laid down that a child facing a case punishable with death can be allowed this concession only when he has remained in custody for more than one year. Apparently this subsection can be related to offence punishable with death and not the punishment to be awarded to an accused."
17. ' In Siraj Din's case (supra) the entire order by which the honourable Supreme Court did not interfere with the bail granted to a child by the High Court is in the following words: "CORNELIUS, C. J.---This accused, who has been granted bail by the High Court is evidently a minor.
18. The age based on X-ray examination is between 16 and 17 years. That is a ground on which bail may be granted even in a case of a capital offence, arid it is clear that there has been no excess of power, or irregularity in the exercise of discretion.
19. ' The petition is dismissed."
20. ' In Muhammad Anwar's case (supra) the entire bail granting order passed by the honourable Supreme Court is in the following words: "ASLAM RIAZ HUSSAIN, J.--- Muhammad Anwar petitioner seeks leave to appeal against the order of a learned Single Judge of the Lahore High Court, dated 12-3-1983 dismissing his application for bail.
(2) He was accused in a murder case and applied for grant of bail on the ground of tender age. It was submitted that he was below 16 years of age at the time of incident. The plea was supported by an entry in his school leaving certificate. The learned Judge, in chamber, however, rejected this plea on the ground that according to the police the petitioner was 19 years of age.
21. ' We are afraid this was not a sound ground for rejecting the plea. We issued notice to the State and have heard the matter as an appeal after grant of leave,
(3) The learned Assistant Advocate-General could not raise any objection against the genuineness of the school leaving certificate or the entries therein. We are of the opinion that the view expressed by the police was not sufficient to reject the appellant's plea of tender age in view of the entries in the certified copy of the school leaving certificate. The appeal is, therefore, accepted and the appellant Muhammad Anwar is allowed bail in the sum of Rs,20,000 with two sureties each in the like amount to the satisfaction of Assistant Commissioner, Bhalwal . "
22. ' In Altaf Hussain's case (supra) petition against grant of bail to a juvenile was similarly dismissed by the honourable Supreme Court.
23. ' It is settled law that the Ordinance has been promulgated to safeguard the human rights of a section of the society who deserves special protection in view of tenderness of their age. In Afsar Zamin's case (supra) it was held by a Single Judge of this Court 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."
24. Every law is meant for welfare of the society whether it aims to achieve welfare by granting a relief or by creating a deterring wall. Either way the objective of every law in a civilized society is welfare of the- society. The- Ordinance is no exception to it. Therefore, section 10 (7) of the Ordinance cannot be read as to have negated the provision contained in first proviso to section 497, Cr.P.C.
25. Because two complement each other and do not negate each other. Moreover they cater to two different situations.
26. ' Even on merits it is stated in the F.I.R. That the three applicants were along with the deceased in a canal and the witnesses stated that they saw them lying upon the deceased. Whether that lying upon was an impish playfulness or a deliberate act of murder is not clear from anything stated in the F.I.R. Moreover, the applicants are young boys and are still students. Whereas through the final judgment they can be punished if they are proved guilty of the crime but if they prove innocent valuable education loss to them cannot be recouped or recompensed.
27. ' Result of the above discussion is that this bail application is allowed. Applicants are ordered to be admitted to bail upon their executing a PR bond in the sum of Rs,200,000 (two hundred thousand only) each with one surety each in the like amount to the satisfaction of the trial Court.