LUBNA SALEEM PERVEZ, J.---Through instant Criminal Miscellaneous Petition under section 497(5), Cr.P.C., the petitioner , Muhammad Touraib, seeks cancellation of bail granted by Additional Sessions Judge-VII, West- Islamabad, to the accused namely Muhammad Taimoor Khan, vide order dated 21.09.2020 in case FIR No. 73/2020, dated 15.02.2020, registered for offences under sections 324/148/149, P.P.C., at Police Station Aabpara, Islamabad.
2. Brief facts of the case, as narrated in the FIR, are that Alamzeb and Farrukh Rafiq, the students of Federal Government Model School were severely injured with machete/khanjer stabs after badly beaten by Shahrukh Khattak, Taimoor Khan and other unknown assailants on 14.02.2020. The complainant is the uncle of both the injured boys and the lab attendant in the same school. He and the security guard of the school are also the eye- witnesses of the offence. Motive, as per FIR, is the altercation and exchange of hot words between the accused and the injured, which resulted in commission of offence. It is pertinent to mention that the injured and accused are juveniles below the age of sixteen year. Taimoor Khan filed pre-arrest bail application under section 498, Cr.P.C., before the Additional Sessions Judge. West-Islamabad, Islamabad, who initially granted ad-interim bail to the accused and subsequently confirmed the same, vide order dated 21.09.2020, on the deposit of surety amount of Rs. 50,000/- and PR bond of the like amount and by accepting the affidavits of father (Nazar Muhammad) and Uncle (W ahid Shah) of the accused. The complainant thus filed the present petition for cancellation of bail.
3. Learned counsel for the petitioner/com plainant submitted that the order of the learned Additional District and Sessions Judge-VII, Islamabad is without jurisdiction as he has not given any finding regarding mala fide and ulterior motives of the complainant against the accused; that the accused has been nominated with specific role in committing the offence; that sufficient material is available on record which connect the accused with the commission of offence; that the grant of bail to the accused has hampered investigation proceedings and the recovery of crime weapon and its safe custody has become impossible. He submitted that in the judgment titled Sarwar Sultan v. The State (PLD 1994 SC 133) the Hon'ble Supreme Court has held that grant of pre-arrest means that a person is exempted from joining the investigation and if the person is not associated with the investigation there is no chance of recovery of incrimin ating article which would definitely affect adversely the prosecution at the time of final conclusion . He also relied on the judgment of Hon'ble Sindh High Court in the case reported as Adam Ali v. The State (2019 MLD 1749 ), wherein it has been held that the recovery of crime weapon has yet to be made by the police; hence, grant of pre-arrest bail to the applicant may cause set-back in investigation and can stand as a stumbling block in the way of recovery of incriminating article . He submitted that learned ASJ has not considered the settled law of the superior courts and allowed pre-arrest bail to the accused in a mechanical manner; that sufficient evidence has been produced by the prosecution which shows that the accused has attacked Alamzeb and Farrukh Rafiq with the intention of killing them and, as such, provision of section 324, P.P.C. is fully attracted; that the impugned order is perverse on the face of it as the only reason for which the bail has been allowed is that the accused is juvenile under section 6(3) of the Juvenile Justice System Act, 2018 (hereinafter referred to as Act, 2018 ); that the accused is involved in a heinous crime falling under section 324, P.P.C. (attempt to commit Qatl-i- amd) which fact is also ignored by the learned ASJ; that the tender age cannot be used as a license to kill; that learned ASJ has travelled beyond the scope of section 6 of the Act, 2018 by readin g it with the provisions of section 498, Cr.P.C. for deciding a pre-arrest bail. He submitted that the legally and factually the impugned order passed by the learned ASJ is perverse and liable to be set aside.
4. On the other hand, learned counsel for the respondent No.1/T aimoor Khan (hereinafter referred to as the accused) submitted that the impugned order has been passed by the learned ASJ by proper appreciation of law; that the Hon'ble Supreme Court in the judgment reported as Sami Ullah and another v. Laiq Zada and another (2020 SCMR 1115) has reiterated the principles for the cancellation of bail and held that only in exceptional cases the already granted bail is to be cancell ed; that the bail to the accused has been allowed keeping in view the provision of section 6 of the Act, 2018, wherein it has been provided that custody of accused shall not be kept in police station or in jail; that it has also been provided in section 6(2) that the guardian of the accused shall be traced out and immediately his custody shall be handed over to the guardian; that section 6(1) also provides that the custody of the juvenile accused shall be placed with a suitable person or rehabilitation center and, therefore, the learned Judge on the assurance of the Father and Uncle of the accused, after obtaining PR bonds and personal affidavits, handed over the custody of the accused to them which act is in accordance with the provisions of law .
5. Learned State Counsel submitted that the learned Additional Sessions Judge has exceeded its jurisdiction by granting bail to the accused and has erred in appreciating law on the subject and has applied the test for grant of post arrest bail, whereas, the parameters of pre-arrest bail and post arrest bail are distinct in nature. He placed reliance on the judgment of Hon'ble Lahore High Court re: Hidayat Ullah v. The State [PLD 1949 Lahore 21], Muhammad Arshad v. Muhammad Rafiq [PLD 2009 SC 427]; that the learned Judge, while granting bail to the accused, has not properly appreciated the guidelines for granting pre-arrest bail provided by Hon'ble Supreme Court; that nature and gravity of the offence with which the juvenile is charged is of utmost concern. He submitted that the bail is not an automatic consequence in case of juvenility of the accused by placing reliance on the judgment of the Hon'ble Peshawar High Court titled Arshad Iqbal v. Naeem Khan (PLD 2004 Peshawar 11), Naeem Khan v. The State (PLD 2004 Peshawar 70) and Fawad Khan v. Jamshed Khan (2018 PCr.LJ 498); that recovery of crime weapon is yet to be effected from the accused; that the grant of pre-arrest bail is hampering the investigation proceedings and recovery of crime weapon he, therefore, prayed for setting aside of the impugned order by cancelling the bail.
6. Arguments heard. Record perused.
7. The accused in the present case has been admitted to pre-arrest bail, vide impugned order dated 21-09-2020, passed by learned Addl. Sessions Judge- VII, West, Islamabad. The reasons for allowing pre-arrest bail mentioned in the impugned order are that the accus ed did not repeat the act for causing hurt to injured Farrukh Rafiq which are on non-vital part, therefore, there is no intention of causing Qatl-i-amd; that common object is a question of further inquiry; punishment for offence under sections 337-F(iii)/337-N2, P.P.C. does not fall under prohibitory clause and that the accused is not a hardened criminal.
8. In the present case, the accused as well as the injured fall under the definition of "child" per section 2(b) of the Act, 2018, admittedly being below the age of 18-years. Thus, their case for all intent and purposes falls under the Act, 2018. As per contents of the FIR, the accused along with other co-accused entered in the school of Farrukh Rafiq and injured him with the Khanjar stabs, as such, he has been attributed with specific role of stabbing and injuring Farrukh Rafiq in the subject FIR. He was granted pre-arrest bail by the learned Additional Sessions Judge, vide order dated 21.09.2020, for the reasons mentioned in the preceding paragraph. The learned counsel for the complainant as well as the State Counsel in their averments with vehemence contested the impugned order by referring section 6 of the Act, 2018 and submitted that the learned ASJ has misinterpreted the said provision while granting pre-arrest bail to the accused.
9. According to the preamble of the Act, 2018, it has been promulgated to provide for criminal justice system for the juveniles. Its aims, object and purpose can be gathered from the definition of the phrase "best interest of the child" which has been defined vide section 2(a) as under:- "2(a) "best interest of the child" means the basis for any decision taken regarding the child to ensure fulfillment of his basic rights and needs, identity , social well-being, physical, emotional and psychological development"
10. The Act , 2018 has repealed the Juvenile Justice System Ordinance, 2000 (hereinafter referred to as the "Ordinance 2000") which was promulgated with the object to provide for protection of children involved in criminal litigation, their rehabilitation in society , reorganization of juvenile Courts and matters connected therewith and incidental thereto . Thus, when view in the juxtaposition, it leaves no room for doubt that the laws have been enforced with the similar purpose and objects, hence, it is a beneficial legislation which provide for the protection of juvenile involved in criminal matters and to safeguard his right and to take all necessary measures which are in the best interest of the juvenile. It is a settled law that since, the beneficial legislation is promulgated to provide benefit to the class of individuals and, therefore, are interpreted in such a manner that the purpose of the statute should be achieved, thus to achieve the propose and object of the Act, 2018, it is to be construed liberally . Reliance is also placed on the judgment titled as "Afsar Zamin v. The State [PLD 2002 Karachi 18], wherein with regard to Ordinance 2000, the Hon'ble Court has observed that 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.
11. The Act 2018 at the same time is a special law having its own mechanism for the purpose of dealing with criminal litigation relating to juveniles. Admittedly , in the present case the accused/Respondent,,No.1 is a minor within the meaning of section 2(b) of the Act 2018, therefore, the provisions of section 6 of the Act 2018 are fully attracted for the purposes of grant of pre-arrest bail. For facility of reading, section 6 is reproduced below:- "6. Release of a juvenile on bail.- (1) Notwithstanding anything contained in the Code, a juvenile accused of bailable offence shall, if already not released under section 496 of the Code, be released by the Juvenile Court on bail with or without surety unless it appears that there are reasonable grounds for believing that the release of such juvenile may bring him in association with criminals or expose him to any other danger . In this situation the juvenile shall be placed under the custody of a suitable person or Juvenile Rehabilitation Centre under the supervision of probation officer . The juvenile shall not under any circumstances be kept in a police station under police custody or jail in such cases.
(2) The Juvenile Court shall, in a case where a juvenile is not released under subsection (1), direct the police for tracing guardian of such juvenile and where guardian of such juvenile is traced out, the Juvenile Court may immediately handover custody of the juvenile to his guardian.
(3) Where a juvenile is arrested or detained for commission of a minor or a major offence for the purposes of this Act, he shall be treated as if he was accused of commission of a bailable offence.
(4) Where a juvenile of more than sixteen years of age is arrested or detained for a heinous offence, he may not be released on bail if the Juvenile Court is of the opinion that there are reasonable grounds to believe that such juvenile is involved in commission of a heinous offence.
(5) Where the Juvenile Court is of the opinion that the delay in the trial of a juvenile has not been occasioned by an act or omission of such juvenile 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, such juvenile shall be released on bail if he has been detained for a continuous period exceeding six months and whose trial has not been completed.
12. Perusal of section 6, subsection (1) above reveals that it is a non obstante provision mandated with the obligation for release of a juvenile accused on bail with or without surety , if not already released under section 496, Cr.P.C. and if it appears on the basis of reasonable grounds that his release will expose him to danger and association with other criminals, in that condition his custody should be handed over to a suitable person or juvenile rehabilitation Centre under supervision of Probation Officer. The language of section 6(1) of the Act, 2018, imposes a mandatory restriction with force that under no circumstances the juvenile shall be kept in the custody of Police or in jail. It appears that in view of mandatory restriction of section 6(1), section 6(2) of the Act, 2018, also binds the Court to issue direction to the police to trace the guardian of such juvenile and hand over the custody of the juvenile to him/her . Section 6(3) of the Act 2018 refers to commission of a major or a minor offence under the Act 2018 by the juvenile which provides that in case of minor/major offence committed by juvenile he shall be treated as being accused of commission of a bailable offence. The major and minor offences have been defined, vide sections 2(m) and 2(o) of the Act 2018 as under:- 2(m) "major offence" means an offence for which punishment under the Pakistan Penal Code, 1860 (Act XLV of 1860) or any other law for the time being in force is more than three years and up to seven years imprisonment with or without fine; 2(o) "minor offence" means an offence for which maximum punishment under the Pakistan Penal Code, 1860 (XLV of 1860) or any other law for the time being in force is imprisonment up to three years with or without fine;
13. Section 6(4) of the 'Act 2018 provides for refusal to allow bail to a juvenile who is above the age of 16-years arrested for commission of heinous offence but on the condition that juvenile Court is satisfied on the basis of reasonable ground to believe that such juvenile is involved in that heinous crime. Heinous offence has been defined vide section 2(g) of the Act 2018 which reads as under:- 2(g) "heinous offence" means an offence which is serious, gruesome, brutal, sensational in character or shocking to public morality and which is punishable' under the Pakistan Penal Code, 1860 (Act XLV of 1860) or any other law for the time being in force with death or imprisonment for life or imprisonment for more than seven years with or without fine.
14. The intention of the legislature is thus evident from the language of section 6 of the Act 2018 that in no case the juveniles involved in the commission of criminal offences should be kept and detained in the police station or in police custody and priority for their custody has been given to their guardian and in exceptional circumstances the juvenile is to be placed in the custody of suitable person . or juvenile rehabilitation Centre. Even for the purposes of detaining a juvenile of more than 16 years of age involved in heinous crime, the condition of existence of a reasonable ground, in the opinion of juvenile Court of his involvement in commission of of fence has been imposed.
15. In the instant case learned counsel for the complainant/petitioner as well as State Counsel are of the firm belief on the basis of evidence that the offence committed by the accused falls under the definition of heinous crime and thus he should not have been admitted to pre-arrest bail, vide impugned order dated 21.09.2020, however , the aspect with regard to the nature of inten tion and attempt which resulted in the occurrence of offence, would be collected from the probe into facts and circumstances of the case by the learned trial Court. I am of the view that the learned Additional Sessions Judge has acted according to the mandate of Juvenile Justice System Act, 2018, hence do not require any interference.
16. For the forgoing reasons, the instant Criminal Miscellaneous Petition, is hereby dismissed.