' ABDUL RASOOL MEMON, J.---The supra titled bail applications filed on behalf of the applicants are outcome of one and same crime being F.I.R. No,96 of 2012 of Police Station Hali Road, Hyderabad under section 302/34, P.P.C., therefore, these shall be decided by this single order.
2. The charge against the applicants/accused is that on 1-7-2012 at 10-15 a.m. They entered into the house of deceased Nadeem and beaten him, resultantly who died. The incident was witnessed by wife and daughter of the deceased (Sameena and Sakina). Deceased and accused Hanif and Yousuf are step-brothers while accused Imran and Shahzad are sons of co-accused Hanif and Yousuf. Dispute over partition of the house is said to be the motive of the said incident.
3. The applicant/accused has denied the incident and in support of these applications learned counsel for the applicant contended that the deceased was addict of heroin and was seriously ill for a long time; that he was lying in a street from where he was shifted to hospital by Mohalla people; that the story set up in F.I.R. Is concocted one; that it is outcome of the dispute over the property; that the accused Shahzad is minor aged about 14 years and applicant accused Imran is aged about 17 years; that the applicant Hanif and his sons Shahzad and Imran at the time of alleged incident were present at their shop 'and not at the place of Wardat.
4. The Deputy Prosecutor-General supported by Mr. S. Kamran Ali Advocate for the complainant has opposed the grant of bail on the ground that the applicant accused have specifically been nominated in the F.I.R. With specific role. She further adds that grant of pre-arrest bail is an extraordinary relief and could not be granted until and unless the applicant succeeds to establish mala fide and unjust harassm ent on the part of police and complainant. According to her nothing has been brought on record to prima facie show any enmity with the police or humiliation or unjustified harassm ent. She has contended that accused Imran is aged about 23 years and has produced a photocopy of his CNIC while for applicant Muhammad Shahbaz Hussain Municipal certificate of birth showing the date of birth of the applicant as 11-7-1995 is produced and states that he at the time of incident was aged above 16 years.
5. I have considered the submissions made by the learned counsel for the parties and gone through the case papers.
6. Admittedly both the parties are members of one and same family and they are residing in portion of one and same house as such there is no question of mistaken identity. The applicants are nominated in the F.I.R. With specific role of falling down, beating and caught hold of the deceased while applicant accused Imran had set over the chest of the deceased and throttled him. As per medical certificate deceased has sustained three injuries viz. On both right and left knees joints and right side neck and cause of death is shown "vasovagal shock resulting from soft tissue injury by external force leading into immediate cardio respiratory failure", which supports the prosecution version. The deceased is shown as aged about 45 years, falling down a young man of such an age in presence of his wife and daughter does not appear to be the act of a single person and entering of all applicants accused in the house of the deceased indicates common intention/object of the applicants accused for attacking upon the deceased with murderous assault as such they cannot be absolved of common object and vicarious liability.
7. Right of pre-arrest bail is limited to exceptional and rare cases which are based on mala fide/enmity or where no offence is shown to have been committed on the bare reading of the F.I.R.
As held in the case of Muhammad Arshad and another v. The State and another (1996 SCM R 74).
8. In the above circumstances so far as from the contents of the F.I.R. And perusal of medical certificate and statements of witnesses it appears that offence has been committed while for mala fide/enmity as per contents of F.I.R. There was dispute between the parties as regards to partition of property. The enmity is double edged weapon which could be used either of the way, therefore, the applicants accused cannot claim benefit of the same at this stage. So far the plea of alibi is concerned I am of the opinion that this plea requires judicial scrutiny at trial. However, no such proof or evidence is brought on record except the plea taken in the bail application for non-- availability of the applicant at the place of wardat at the time of incident. So far as the age of applicant Imran is concerned as per applicant's plea he is aged about 16 to 17 years while the complainant has produced photocopy of his CNIC wherein his date of birth is shown as 1-1-1989 and thereby on calculation his age would be above twenty years. No doubt the concession of bail cannot be refused in a case of minor but in view of provision added to subsection (7) to section 10 of the Juvenile Justice System Ordinance 2000 in case of a child of age of 15 years or above the court may refuse to grant the 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 to public morality therefore in such circumstances when it is the own plea of the applicant that he is aged about 16/17 years who is attributed specific role of causing death of deceased Nadeem, therefore, he cannot get benefit of his being minor for grant of bail.
9. In view of my above discussion I am of the opinion that the applicant Muhammad Hanif, Muhammad Imran and Muhammad Yousuf have failed to make out a case for grant of pre-arrest bail, as such, their application viz. Criminal Bail Application No,1080 of 2012 stands dismissed and the interim pre-arrest bail granted to them is hereby recalled.
10. So far as the case of accused Shahbaz, is concerned, as per school certificate produced by the applicant Shahbaz his date of birth is 22-8-1998 and thereby on the date of incident his age would be about 14 years, while as per Municipal certificate produced by the complainant his date of birth is shown as 11-7-1995 and thereby he becomes 17 years. The applicant Shahbaz was present at the time of hearing of arguments and on his physical appearance he appears to be a minor therefore in such circumstances when there is conflicting documentary evidence then in such circumstances the opinion of expert is necessary for determination of his age. Accordingly, the Civil Surgeon Hyderabad is directed to constitute a Board for determining the age of applicant Shahbaz son of Muhammad Hanif the applicant in Criminal Bail Application No,312 of 2013 and submit the report within fifteen days. In the meantime the applicant Shahbaz will remain on interim pre-arrest bail already granted to him and the matter is adjourned to 30-4-2013 for report of the Medical Board and hearing of his application fresh.
' The above observations are tentative in nature and the trial Court may not be influenced by the same at trial.