' AFTAB AHMED GORAR, J.---Through this application, applicant Khadim Hussain Bhayo seeks post arrest bail in Crime No, 29 of 2012 of Police Station B-Section Kandhkot registered for offences punishable under sections 395 and 397, P. P . C.
2. Facts of the prosecution case are that on 22-2-2012 at 1630 hours complainant lodged F.I.R.
Alleging therein that he along with cousins Hafizullah, Mohammad Rafiq, 3.Shah Muhammad used to live together. Last night they went asleep after closing the door. At 1-00 a.m (night) he woke up on barking of dogs and saw in the light of electric bulbs seven armed accused persons entered the house on which he raised cries on which his cousins also came running. He identified the accused as 1. Khadim Hussain, (applicant) armed with K.K,
2. Buxo armed with gun,
3. Allah Bux armed with pistol, 4.Shah Ali armed with gun all by caste Bhayo resident of village Sheran Bhayo Taluka Tangwani while three accused armed with guns were unknown whom he could identify if seen again. Out of them, accused Allah Bux robbed cash Rs,15000 from pocket of the complainant and asked to hand over money and gold ornaments, else he would be murdered. In the meanwhile, Hafizullah grappled with accused Allah Bux in order to apprehend him but accused Khadim Hussain fired from his K.K with intention to kill Hafizullah' which hit on his left side of abdomen who raising scream fell down. Thereafter accused persons run away while extending threats of murder, in case they would follow them. Thereafter, it was seen that Hafizullah had received firearm injury on left side of his abdomen through and through and blood was oozing. After arranging conveyance, injured Hafizullah was moved to Police Station from where complainant received letter for medical treatment and went to hospital at Kandhkot but the doctor referred the injured to CMC Hospital Larkana. After first aid to injured, complaint approached the Police Station and lodged the F.I.R. To the above effect.
3. After registration of F.I.R. The investigation followed and in due course the present applicant was arrested along with co-accused Buxo and they were sent up to stand trial. Bail plea moved on behalf of the present applicant was declined vide order dated 26-6-2012, giving rise to filing of the instant bail application.
4. Learned counsel for the applicant mainly contended that there is delay of 15 hours in lodging the F.I.R.; offence under section 397, P.P.C. Provides punishment not more than seven years and seven years being below ten years does not come within the prohibitory clause of section 497(1) Cr.P.C.
Because the lesser punishment is to be considered for the purpose of bail. He further contended that it is alleged in the F.I.R. That complainant identified the accused in electric light but memo of wardat does not show any electric bulb in the house of complainant which makes the identification of accused, doubtful. As per F.I.R. Accused Khadim Hussain fired, a shot from his K.K at P.W Hafizullah and there is no allegation of repeating of fires in air but the memo of wardat shows that 4 empties of 7.62 were recovered from wardat. Injured Hafizullah received a bullet injury and as per F.I.R., blood was oozing but memo of wardat does not show recovery of blood stained earth. He further pointed out that all the male members of one and same families have been implicated in this case. Robbed property has not been recovered from the possession of the present applicant to connect him with the commission of crime. He further stated that on the direction of the trial Court Special Medical Board was also convened on 30-5-2012 under which the age of applicant/accused was opined as 17 years, thus it stands proved that the age of applicant accused was below 17 years at the time of incident and he comes within definition of child as defined by 2(b) of Juvenile Justice System Ordinance, 2000, therefore, he is also entitled to grant of bail. Case has been challaned and the applicant is no more required for further investigation. Learned counsel for the applicant has relied upon the following case-laws:--
(1) Ali Gohar alias Igloo v. The State (20012 YLR 873).
(2) Afsar Zamin v. The State (PLD 2002 Karachi 18).
(3) Mehar alias Mehaar v. The State (2009 PCr.LJ 47).
(4) Sikander v. The State (2006 PCr.LJ 1648).
(5) Zaher v. The State (2007 SCM R 1178).
5. Learned State counsel opposed the grant of bail on the ground that applicant is specifically named in the F.I.R. And he has been assigned role of firing at P.W injured Hafizullah. As per medical report, the injury sustained by the injured Hafizullah is opined by Medical Officer as Jurh Jaifah which is punishable up to 10 years and so also the P. Ws have fully implicated the applicant/accused in their statements under section 161, Cr.P.C. As well as 164, Cr.P.C.
6. I have carefully considered the submissions placed by both the learned counsel for the parties and properly assessed the material brought on the file. As per prosecution, applicant/accused fired a shot which hit P.W. Hafizullah and then firing was not repeated even in the air but mashirnama of place of wardat shows that 4 empties of 7.62 bore were recovered. It is also alleged by complainant in the F.I.R. That P.W. Hafizullah received firearm injury on his abdomen and blood started oozing but as per mashirnama of wardat, no blood stained earth was recovered from wardat. The certificate issued by the Special Medical Board on 30-5-2012 shows the age of applicant as 17 years which means at the time of commission of offence the applicant was below the age of 17 years and thus as per provision of section 2(b) of Juvenile Justice System Ordinance, at the time of incident the applicant/accused was child. Furthermore, the applicant has remained behind the bars for more than ten months.
7. In the case reported as Zaher v. The State (Supra), honourable Full Bench of Apex Court held that the accused being 16/17 years old was a minor and in view of tender age of accused and in absence of unnatural lust having been committed, coupled with circumstances, that investigation had been completed and the charge sheet sent up before the trial Court, a fit case for the grant of bail pending trial was made out. Petition for leave to appeal was converted into appeal and same was allowed and the petitioner/accused was admitted to bail accordingly.
8. In the case of Sikander Ali v. The State (Supra) it was held that according to School Certificate and Medical Certificate, accused at the time of incident being under the age of 18 years, was a child within meaning of section 4(3) of Juvenile Justice System Ordinance, 2000 and the Juvenile Justice System Ordinance being the special law enforced in order to safeguard the rights of children/minors involved in criminal cases, who deserved reasonable concession because of their tender age, its provisions, were to be liberally construed/interpreted in favour of child accused. It was further held that once accused had come within the definition of child, he was entitled to grant of bail, even if involved in the case punishable with death and such concession was subject to limitations contained in the said Ordinance. Bail was granted to the accused in the circumstances.
9. In the case of Ali Gohar alias Igloo v. The State (Supra) it was held that deceased had allegedly received an injury and died on the spot, but the mashirnama of inspection of scene of crime did not disclose or state any blood-stained on the ground. Accused was said to be armed with K.K but no injury caused-by K.K was stated in the post mortem report. Five empties were stated to have been recovered from the spot, but the Klashnikov allegedly used by the accused had not been recovered. Accused was admitted to bail.
10. In the case of Mehar alias Mehaar v. The State (Supra), it was held that accused who came within the definition of "child" was entitled for grant of bail even if involved in case punishable with death and such concession was subject to limitations contained in the said Ordinance. Bail was granted to the accused in the circumstances.
11. In the case of Afsar Zamin v. The State (Supra) it was held that exercise under the provisions of section 7 of the Juvenile Justice System Ordinance, 2000, is not only to be undertaken at the stage of trial but also in bail proceedings.
12. From the above discussion, it appears that all the cases relied upon by the learned counsel for the applicant are fully applicable to the case of present applicant and at this stage, the applicant being juvenile offender deserves the concession of bail.
13. Consequently, this bail application is allowed. Applicant shall be released subject to furnishing solvent surety in the sum of Rs,200,000 and P.R bond in the like amount to the satisfaction of trial Court.