IJAZ ANWAR.J. Through instant bail application, accused petitioner Rafiq son of Nama Jan seeks his release on bail in case FIR No. 309 dated 29.08.2024 under section 9 (d) CNSA of police station Bara, District Khyber.
2. In the instant case, accused petitioners is charged for recovery of 12 Kgs charas from his personal possession.
3. Arguments heard and record perused.
4. Learned counsel for the petitioner contended that the accused petitioner is 14 years of age and is studying in 8th class and under the provisions of the Juvenile Justice System Act, 2018 and Criminal Procedure Code, 1898, he has a right to be released on bail. In support of his contention, he referred to the of extract of Admission register of Govt. High School, Madghali Atari Bara District Khyber, Birth Certificate and student card (copies annexed with the bail petition) according to which the date of birth of accused petitioner is 31.03.2010 (aged about 14 years).
5. Since the accused petitioner is below the age of 16 years, therefore, without discussing the merits of the case since it may prejudice the case of either party, his case is to be dealt with in view of the relevant provisions of law providing for grant of bail to juvenile accused.
6. Accused petitioner being below the age of 18 years, comes under the definition of "Child" as per section 2 (b) of the Juvenile Justice System Act, 2018. Section 6 of the ibid Act deals with the release of a juvenile accused on bail. Though sub section 4 of section 6 puts a restriction on the grant of bail to a juvenile accused charged for commission of a heinous offence, however, that restriction would come into the way of accused petitioner being below the age of 16 years. Similarly, first proviso to section 497 Cr.P.0 clearly provides that any person under the age of 16 years has a right to be released on bail irrespective of the category of offence. Reliance is placed on the judgement of the august Supreme Court of Pakistan rendered in case titled "Mst. Ghazala vs the State" (2023 SCMR 887) wherein it has been held as under: "No doubt, the offence of Qatl-i-amd (intentional murder) punishable under section 302, P.P.C. alleged against the petitioner falls within the prohibitory clause of section 497(1) of the Code of Criminal Procedure, 1898 ("Cr.P.C.") but being a women, the petitioner's case is covered by the first proviso to section 497(1), Cr.P.C. The said proviso, as held in Tahira Batool case, makes the power of the court to grant bail in the offences of prohibitory clause of section 497(1) alleged against an accused under the age of sixteen years, a woman accused and a sick or infirm accused, equal to its power under the first part of section 497(1), Cr.P.C. It means that in cases of women accused etc. as mentioned in the first proviso to section 497(1), irrespective of the category of the offence, the bail is to be granted as a rule and refused only as an exception in the same manner as it is granted or refused in offences that do not fall within the prohibitory clause of section 497(1), Cr.P.C. The exceptions that justify the refusal of bail are also well settled by several judgments of this Court.2 They are the likelihood of the accused, if released on bail: (i) to abscond to escape trial; (ii) to tamper with the prosecution evidence or influence the prosecution witnesses to obstruct the course of justice; and (iii) to repeat the offence.
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6. In view of the facts and circumstances of the case, we do not find that there is a likelihood that the petitioner if released on bail, after securing sufficient sureties, would abscond to escape trial, or tamper with the prosecution evidence or influence the prosecution witnesses to obstruct the course of justice, or repeat the offence. Her case, thus, does not fall within any of the three well- established exceptions that may have justified refusing bail to her.
The present petition is, therefore, converted into appeal and the same is allowed. "
7. In view of the above discussion, accused petitioner has made out a case for his release on bail on the ground of juvenility. Resultantly, this bail application is allowed.
8. These are the reasons for my short order even dated which is reproduced below: "Through instant bail application, accused petitioner Rafiq son of Nama Jan seeks his release on bail in case FIR No. 309 dated 29.08.2024 under section 9 (d) CNSA of police station Bara, District Khyber.
For the reasons to be recorded later, this bail application is allowed and the accused petitioner is admitted to bail provided he furnish bail bonds in the sum of Rs.500,000/- with two sureties each in the like amount to the satisfaction of Illaqa/JudiciallDuty Magistrate who shall ensure that the sureties are local, reliable and men of means."