The petitioner Muhammad Manzoor alias Dani on being unsuccessful in getting relief of post-arrest bail from the court of learned Additional Sessions Judge, Mianchannu, District Khanewal through instant application entreats the same concession from this Court in case FIR No.674/2022 dated 20.12.2022, in respect of an offence under Section 9(1) 3(c) of the Control of Narcotic Substances Act, 1997 (The "Act"), registered at Police Station, Tulamba District Khanewal.
2. The factual milieu of this case narrated in the crime report is that Khalil Haider, T-ASI was on patrolling duty along with other police contingents on 20.12.2022, when he received spy information that Manzoor alias Dani (petitioner) is selling charas while standing at Tharaaj Adda Chak No.19/8R.
Upon receiving the information, a raiding party was constituted and incursion was made at Adda Chak No.19/8R, whereupon a person was found present there and on seeing the police party, he (petitioner) attempted to flee away from the spot but apprehended by Khalil Haider, T-ASI with the help of other contingents of police. On query, the petitioner disclosed his name as Muhammad Manzoor alias Dani, resident of Chak No.19/8R, who was having blue colour shopper in his right hand. Upon checking, three packets of charas were recovered and upon weighing each packet found to be of 1240 grams, 62- grams each was separated from every packet for the purpose of analysis. Moreover upon further search of the petitioner, sale proceed of Rs.1400/- was also recovered from front pocket of his shirt with the denomination of ten notes of Rs.100/- and eight notes of Rs.50/-. Three parcels of specimens and other three parcels of case property as well as amount of sale proceed were taken into possession.
Hence, this case.
3. It is, inter alia, contended by learned counsel for the petitioner that the petitioner has falsely been implicated in this case by the police to show its efficiency, otherwise, he has no concern with the commission of crime. Further submitted that petitioner was aged about 13 years 11-months and 15- days at the time of occurrence and by virtue of Section 6(3) of The Juvenile Justice System Act, 2018, the offence with which the petitioner has been charged will be treated as bailable.
4. Conversely, learned Deputy Prosecutor General has argued with vehemence that petitioner is involved in heinous crime, which is an offence against society and in terms of Section 6(4) of The Juvenile Justice System Act, 2018, the petitioner is not entitled for the concession of bail because he is involved in a heinous offence.
5. I have mused over the arguments, advanced by learned counsel for the petitioner as well as learned Law Officer and gone through the record with their eminent assistance.
6. I have straightway noticed that according to Birth Registration Certificate, placed by the petitioner on file as (Annexure-D), the petitioner was 13-years, 11-months and 15-days of age at the time of alleged occurrence and even in the police record almost same age has been mentioned by the police, and in this way the case of petitioner squarely falls within exception of Section 83 of The Pakistan Penal Code, 1860. It seems that the learned lower court was not assisted properly and the relevant law on the subject was not taken into consideration.
Section 83 P.P.C., for ease of reference, is hereby reproduced infra:- "Act of a child above [ten] and under [fourteen] of immature understanding.- Nothing is an offence which is done by a child above [ten] years of age and under [fourteen], who has not attained sufficient maturity of understanding to judge of the nature and consequences of his conduct on that occasion."
To better decide the controversy in issue, it is expedient to have a glance over Section 6 of the Juvenile Justice System Act, 2018, which reads as under:-
6. Release of 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 continues period exceeding six months and whose trial has not been completed.
7. Section 2 of the Juvenile Justice System Act, 2018 defines child, as well as, heinous, minor and major offences as follows: "2(b). "child" means for the purposes of this Act a person who has not attained the age of eighteen years;
(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;
(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;
(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;
8. A holistic reading of the above sections of the Act of 2018 reflects that a juvenile i.e. (a person less than 18 years of age) accused of a major or minor offence, should be granted bail as of right and not by way of grace or concession 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. If the offence for which a juvenile is charged is a heinous offence, the juvenile may be declined bail provided he is more than 16 years of age. I have also noted that sections 6(3) and 6(4) of the Supra mentioned Act have different meanings and purposes. Section 6(4) of the Act Ibid do not have an overlapping effect upon section 6(3) of the Act. In the present case, according to the Birth Registration Certificate, the petitioner prima facie, appears to be 13 years, 11-months and 15-days of age and thus, entitle to the concession given in the Act of 2018 to persons falling within the ambit of Section 6(3) of the Act Ibid. I may refer here the case of Sahib Ullah Versus State through A.G. Khyber Pakhtunkhwa and another (2022 SCMR 1806), wherein the Hon'ble Supreme Court of Pakistan has observed as under:- "We have heard the learned counsel and with their assistance examined the documents and examined the provisions of the Act. The Trial and High Courts failed to appreciate the fact that the petitioner on the date of the occurrence, which was 12 February 2021, attained sixteen years of age and that the exception contained in subsection (4) of section 6 of the Act is attracted only if the petitioner was more than sixteen years of age. In this case the petitioner was exactly sixteen years of age on the date the offence was committed. Therefore, the applicable provision of the Act would be its subsection (3) which provides that the petitioner has to be considered as if 'he was accused of commission of a bailable offence' if the offence is one as defined as 'minor or major offence' in the Act, which are respectively offences for which a maximum of three and seven years imprisonment is provided (sections 2(o) and 2(n) of the Act). Neither the learned Judge of the Trial Court nor the learned Judge of the High Court had considered the fact that the petitioner on the date of the commission of the offence was exactly sixteen years of age, and was not more than sixteen years of age, a fine distinction to which the learned counsel for the petitioner has drawn our attention. The date of arrest in a criminal case is immaterial; an accused has to be dealt with under the law as applicable on the date that the crime is committed. Another principle of criminal law which advances the contention of the petitioner's counsel is that if there are two possible interpretations of a provision of the law the one favourable to the accused is applicable, and all the more so when the accused is governed by a special law, which in the instant case is the Act."
A similar view has also been taken by the Hon'ble Supreme Court of Pakistan in the case reported as Khawar Kayani vs. The State and others (PLD 2022 SC 551).
9. The petitioner is languishing in judicial lock up since his arrest and the investigation to his extent is already complete and his physical custody is no more required to the police for further investigation, as report under Section 173 Cr.P.C has been filed. His further incarceration would not be lucrative to the prosecution at this stage. Moreover, it has been held time and again by the august Supreme Court that bail does not mean acquittal of accused but only change of custody from Government agencies to the sureties, who on furnishing bonds take responsibility to produce the accused whenever and wherever required to be produced. Reliance can be placed on the landmark judgment of the Hon'ble Supreme Court reported as "Haji Muhammad Nazir v. The State" (2008 SCMR 807).
10. The epitome of the above mentioned discussion is that the petitioner has succeeded to make out the case of bail after arrest. Resultantly, this petition is allowed and petitioner is admitted to post-arrest bail subject to his furnishing bail bonds in the sum of Rs.1,00,000/- with one surety in the like amount to the satisfaction of learned trial Court.