RAZA ALI KHAN, J.---The captioned criminal revision petition has been filed against the order passed by the learned Additional District. Court of Crimi nal juiisdiction, Muzaf farabad dated 29.02.2020, whereby the post arrest bail of the accused/petitioner , who is detained in FIR No.146/2018 registered in the offences under section 302, A.P.C. and 12 ZHA at Police Station Sadar on 26.06.2018, has been rejected.
Precise facts of the case are that Muhamm ad Irshad son of Muhammad Ali, complainant made a written application to Police Station Sadar Muzaf farabad on 04.07.2018 stating therein, that he is resident of Kander and since two months, residing with his family in a rented house at Muzaf farabad. On 26.06.2018, as usual he went out from home early in the morning and his wife Mst. Sumaira Bibi, a son Rehmat Ali aged 11 years and three other children were at home. His son Rehmat Ali was the student of Class Three and was study ing in Boys Middie School Bela Noor Shah. At evening, when he reached back at home at 6:00 p.m., his wife told him that Rehmat Ali at 11:00 a.m. went out from home and did not come back. He searched him but did not find him. On 29.06.2018, he reported to Police Station Sadar , Muzaf farabad and on 03.07.2018, dead body of his son was recovered from river near to Lab-e-Neelum Hotel. The apprehension of the complainant is that any unknown person tried to commit sodomy with him and murdered him.
Upon this FIR No.146/2018 was registered in the offences under section 302, A.P.C. against unknown persons at Police Station Sadar on 26.06.2018. Durin g the investigation police found the petitioner/accused guilty and arrested him and after formal investigation submitt ed report under section 173, Cr.P.C. (Challan) before the trial Court. The petitioner/accused seeking liberty on bail, applied to Additional District Court of Criminal Jurisdiction Muzaf farabad.
After hearing the parties, the learned Additional District Judge Muzaf farabad, vide order dated 29.02.2020, dismissed the bail application filed by the accused/petitioner , hence, the captioned revision petition.
Raja Muhammad Altaf Khan, the learned counsel for the petitioner/accused vehemently argued that the petitioner is a juvenile/minor whose age was thirteen years old at the time of his arrest, so without going into merits of the case he deserves to bail' as per Azad Jammu and Kashmir Juvenile Justice System Act, 2003 even otherwise on merits. Prima facie he has a good case of bail under section 497(2), Cr.P.C. He further stated that petitioner is not nominated in the FIR but has been involved in the case on the basis of suspicion and no specific role has been attributed to him. The learned counsel further submitted that, although the cases of same nature have been registered against the petitioner but ultimately he was acquitted of the charge, so, on the basis of those cases, bail cannot be refused. The learned counsel further averred that the case has been registered on the basis of enmity with one Muhammad Anwar , Inspector because his nephew has abducted the sister of the petitioner , so whole story of prosecution is concocted. He further submitted that when the case was registered against the petitioner , his age was 14 years and was minor , hence , he being of tender age, is entitled to concession of bail under section 497, Cr.P.C. too. The learned counsel further argued that no direct evidence is available against the petitioner nor any recovery has been made from the petitioner , since long prosecution has failed to produce evidence against him and prosecution with mala fide intention is trying to prolong the trial, therefore, by accepting the revision petition, petitioner be released on bail. He referred and relied upon the following case law:--
1. 2017 SCR 415, 420, 986, 428,
2. 1992 SCR 1, 3. 2019 SCR 105, 4. 2018 SCR 260, 268, 5. 2004 PCr .LJ 935 and 6. 2010 SCR 402.
The learned AAG, representing the State and counsel for the complainant jointly submitted that the petitioner is habitual criminal and many cases of same nature of child abuse and sodomy have been registered against him at different police stations of Muzaf farabad City, hence, his release on bail amounts to freedom of such act in future.
They further added that accused was acquitted of the charge in other cases on the basis of compromise and not on merits, hence the accused/petitioner does not deserve the concession of bail. The learned AAG while referring the police record, submitted that claim of petitioner being juvenile is baseless, he is adult and 16/17 years of age.
I have heard the learned counsel for the parties as well as the learned AAG for the State and gone through the record of the case.
The detail of prosecution case as mentioned in the FIR No.146/2018 recorded on the written application of complainant and in detail incorporated in report under section 173, Cr.P.C. submitted by police after investigation is that petitioner/accused after committing sodomy , brutally murdered the Rehmat Ali, a young child of 11 years. It is pertinent to mention here that the many cases of same nature and same charges against the petitioner have been registered at dif ferent Police Stations of Muzaf farabad City . Detail of these cases is as under:-
1. FIR No.01/2019, offences 377, P.C. at Police Station, City 2, FIR No.507/2018, offences 337 and 377, P.C. and 12 ZHA.
3. FIR No.384/2018 of fence 324, P .C. and 12 ZHA, at Police Station, City , Muzaf farabad.
The learned counsel for petitioner/ accused mainly argued on the ground of tender age of petitioner/accused and claimed the bail under section 10 of Juvenile Justice System Act, 2003. In suppor t of his claim of under age of 16 years, the learned counsel placed reliance on 2010 SCR 402.
A photocopy of "Form B" issued by National Database and Registration Authority (Annex PB) annexed with the revision petition according to which his date of birth is 14.08.2005, but police record denied their claim of minor age and mentioned the age of petitioner 16/17 years. Section 10 of Juvenile Justice System Act, 2003 has provided some concession for the accused who are under age of 15 years but there is a provision under section 10(7) of said Act, according to which if accused found involved in offence of heinous nature, he may not be released on bail while in the case in hand, the age of accu sed according to prosecution version is more than 15 years. Any accused involved in offence of heinous nature cannot claim any concession on the basis of minor age because it is now well settled principle of criminal law that minority per se is no ground for grant of bail. Provision of section 10 of Juvenile Justice System Act, 2003, imposes an embargo in this regard. For proper apprecia tion, section 10(7) of said Act, is reproduced as under:-- "10. Arrest and Bail.---(1) where a child is arrested for commission of an offence, the officer Incharge of the Police Station in which the child is detained shall, as soon as may be inform (7).--Notwithstanding anything contained in the code and except where 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 of 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,
(a) if, being accused of an offence punis hable with death has been detained for such an offence for a continues period exceeding one year and whose trial for such an offence has not concluded,
(b) if, being accused of any offence punishable for imprisonment for life has been detained for such an offence for a continues period exceeding six months and whose trial for such an offence has not concluded, or if, being accused of any offense punishable with death or imprisonment for life, has been detained for such an offence for a continues 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."
No doubt, generally speaking bail is the rule in the case of Juvenile and Juvenile Justice System Act, 2003, is a beneficial legislation intended to reform of the Juvenile/child in conflict with the general law but the law also demands the justice should be done not only to the accused but also to the victim. Keeping in view the provision of Juvenile Justice System Act, 2003, praye r of bail of Juvenile has to be considered on 'the surrounding facts and circumstances, merely by declaration of being a Juvenile does not entitle him in conflict with law to be released on bail as a matter of right. The Juvenile Act, no doubt, has solemn purpose to achieve betterment of children/ juvenile accused but it does not consider as shelter for those Juvenile offenders who have got criminal record and criminal psychology . Wisdom behind the Juvenile Justice System Act, 2003 is reformation but not completely avoid "retributive theory" so if there is found that ends of justice will be defeated or goal desired by legislature can be achieved by detaining a Juvenile accused in jail, bail should be denied to him, therefore, conduct of an accused or the manner of commission of the offence indicates an evil and well planned design of accused committing the offence which indicates his matured skill and approach of accused than that of an innocent child, then the absence of reliable evidence indicating the age of accused, medical evidence indicating that the accused is major cannot be ignored, and he cannot claim shelter of tender age because wisdom behind the Juvenile Justice System Act is welfare and betterment of minors who are innocent offenders and not accused of matured mind criminals who are trying to hide themselves behind the shield of Juvenile Justice System Act, 2003. In the instant case, the entire acts of petitioner/accused in itself clear and deeper findings not warranted because prima facie good evidence is available on record which is supported by his criminal track record.
Even otherwise, it is in the interest of the society not to allow petition bail on such technical ground of minority to discourage the society in commission of such like offence under the ground of minority because a minor accused cannot be furnished license to kill. Any concession under a special law can be extended to a minor accused during trial or at the time of final decision but not at the stage of bail specially when he attained the majority . Reliance can be placed in case titled Farmanullah v . The State reported as 2005 PCr.LJ 1500, wherein, it was held as under: "4. The examination of record, in light of the arguments, reveals that the occurrence has been prima facie supported by the recoveries of empties of the respective weapon allegedly used by each of the accused. They absconded for a long time period and were arrested after more than 3-1/2 years. The parties were the residents of the same village and the recognition of villager was not difficult task. The minority does not furnish the license to kill, and although some concessions con be extended to Juveniles during trial and conviction but at bail stage. It may not be of great help, particularly when he has attained majority during the period of abscondence. Prima facie the prosecution has an arguable case and without commencing on the merit of the case, this petition is rejected", It is also well settled now that after completion of investigation and submission of report under section 173, Cr.P.C.
(Challan) and where trial is in process, it has been long settled by the superior Courts that when trial is likely to commence or begin, bail application should not be decided on merits and matter be left to the trial Court because it may prejudice the case of either party . In this regard, following case law can be relied upon;
1. 1980 SCMR 203 ,
2. PLD 1989 SC 585 , 3. 1992 SCMR 1418 , 4. 1992 SCMR 931 and 5. 201 1 SCMR 1691.
I have gone through the case law relied upon by the learned counsel for the petitioner with utmost respect to same has no relevance to the peculiar facts and circumstances of case in hand, it is not helpful to the instant case.
In view of what has been discussed above, this Court does not find any infirmity in impugned order of learned Additional District Court of Criminal Jurisdiction Muzaf farabad, resultantly the insta nt revision petition is dismissed.
It is made clear that nothing stating or observed while deciding instant petition shall tantamount to expression on the merits of the case.