One Shahbaz Khan, a brother of the petitioner was returning from Market Committee Muridke on the 31st of January 1968, along with Anwar, Shabbir Husain, Rehmat and Nazir towards his house, when the petitioner and his co-accused Waris Khan and Zakir, who were armed with revolvers, opened fire on him. Shahbaz Khan took shelter in a nearby house belonging to one Muhammad Amin. The petitioner and his companions followed him to that place and when they were inside the house resorted to indiscriminate firing, as a result whereof to small girls, namely, Mst. Khalida aged 11/12 years and Mst. Kausar Perveen aged about seven years were seriously injured. They were carried to Mayo Hospital Lahore, where Mst. Kausar Perveen succumbed to her injuries. As a result of this incident, a case was registered against the petitioner and his to co-accused named above and some others under sections 302, 307/452 read with section 34 and section 120(B) of the Pakistan Penal Code at Muridke Police Station the same day, at 12-15 p. m., within 45 minutes of the occurrence.
2. The petitioner applied to this Court under section 498 of the Criminal Procedure Code for grant of bail (Criminal Misc. No. 2297 of 1968). He was allowed bail by Bashirud--din Abroad, J. (now Chief Justice of Peshawar High on 28th June 1968, mainly on the ground, that the Medical Superintendent, District Headquarters Hospital Sheikhupura, who had examined him. On 6th July 1967, formed an opinion on X-ray examination, that he was 15 years of age. The, Medical superintendent also took into consideration other data to come to the aforesaid conclusion-with regard to the age of the petitioner. His Lordship also took into consideration the fact, that though the petitioner was credited to be armed with .32. Bore revolver the pellet recovered from the body of the deceased by the Ballistic Expert had been fired from .12 bore shotgun. However, while allowing bail to the petitioner his Lordship observed :- "The petitioner to continue on bail till such the as a competent Court- frames a charge of non- bailable offence against him. It will; in that event, be open to the Committing Magistrate to cancel bail."
3. The petitioner and his co-accused were committed to the Court of Session. However, the Committing Magistrate to whom option had been given by Mr. Justice Bashiruddin Ahmad, to cancel the bail of the petitioner did not exercise it, on the ground that at the the of the commission of the offence the petitioner was a minor.
4. Shahbaz Khan,' complainant, filed: an application for the cancellation of bail granted to the petitioner, in the Court of the Additional Sessions Judge, Sheikhupura, who cancelled the petitioner's bail on the grounds inter alia :-
(a) That the bail of the to co-accused of the petitioner had been cancelled by, the High Court, in view of the fact, that they had been , committed to stand trial on the charge of murder;
(b) that the petitioner was the principal accused. He was a mill owner and was exercising influence over the prosecution witnesses; and
(c) that the petitioner had a motive to :assault the complainant.
The petitioner was arrested and remanded to judicial lock-up. He has approached this Court by way of the present application for grant of bail.
5. The question raised in the instant petition is both important and interesting. The contention of the, learned counsel for the petitioner is, that the bail having been granted to the petitioner by the High Court could not have been cancelled by the Additional Sessions Judge, especially, when a learned Judge of this Court, while granting bail to the petitioner was pleased to observe, that the petitioner would continue to remain on bail till such the as a competent Court framed charge of non-bailable offence against him. It was further directed, that in the later event, it would be open to the Committing Magistrate to cancel the bail. The argument precisely is, that since the bail was granted to the petitioner by the High Court, it could be cancelled by it or by the Court to which a direction had been given to do so. It is no doubt true, that the power to cancel the bail of the petitioner would flow from the order of this Court. Only the Committing Magistrate had been empowered to cancel the bail, therefore, the learned Additional Sessions Judge was incompetent to cancel the same. To this extent the contention of learned counsel for the petitioner is correct and unexceptionable. However, now that the matter is before this Court, the question as to whether the petitioner should or should not be allowed to remain on bail can be considered. It would not be out of place to mention here, that in support of leis contention, the learned counsel for the petitioner relied on 'the case of Noor Muhammad v. State (PLD 1964 Lah. 464) decided by a Full Bench. This he did for the limited purpose, that- the only Courts which could cancel the bail of the petitioner, in the instant case, were either the High Court oz the Court of the Committing Magistrate. This judgment, which support his contention, contains a pertinent observation, which needs to be reproduced :- "The petitioner has, however, been committed to the Court of Session, which indicates that there is a prima facie case against him, and as he does not come within the ambit of the proviso to section 497(1) of the Code, he cannot be allowed to remain at liberty."
While granting bail to the petitioner, the High Court took into consideration the proviso forming part of subsection (1) of section 497 of the Criminal Procedure Code,, which is to the effect, that even in cases punishable with death or transporta--tion for life, the Court, may direct that any person under the age of 16 years may be released on bail. It was this provision of law, which was pressed into service by Mr. Justice Bashiruddin Ahmad which granting bail to the petitioner, because in the very opening sentence of his order,. He was pleased to observe,, that bail was being granted to the petitioner mainly on the ground of age:
6. Undoubtly the petitioner was below, the, age of 16 years at the the of the' commission of the offence. However, more than to years have elapsed since the occurrence took-place and the petitioner by now is no longer under the age of 16 years. It was--probably this impression in the mind of the learned Judge, that he left it open to the Committing Magistrate to cancel his bail if he was committed. Thus the question .In such circumstances would be, as to whether the petitioner is still entitled to the benefit of proviso, although he is no longer under the age of 16 years. In case of Muhammad Iqbal v. Abdul Basit (1968 P Cr. L J 340) my learned brother Muhammad Afzal Cheema, J. Was of the view that once a person accused of non-bailable offence was admitted to bail on the ground of age, the said order could not be recalled, even though the accused crossed the statutory age limit of 16 years. The facts of that case precisely were, that one Abdul Basit, who had been sent up along with his brother under section 303 read with section 34 of the Pakistan Penal Code, had been allowed bail by the Sessions Judge, Bahawalpur, on the ground of young age.
Subsequently an application for cancellation of bail was made to this Court. The application was disallowed. Because once discretion was exercised in favour of the accused on the ground of age, it -could not be recalled, even if he had crossed the statutory age limit of 16 years. Unfortunately, I do not agree with the aforesaid view, much more so in this case, because bail was granted to the petitioner by the High Court with option to the Committing Magistrate to cancel the same, in case he was charged of non-bailable offence. This direction envisaged that by the the, the petitioner was committed, he would be above the age of 16 years. Thus disagreeing with the view of my learned brother; Muhammad Afzal Cheema, J., I would hold, that there is no legal impediment in the way of the Courts to cancel the bail of an accused person, whirl has been granted bail merely because he was below the age of 16 years at the the of the commission of the offence, where he crosses that limit. There is no prohibition in law in considering the question of bail if the accused person has crossed the age of 16 years and has been charged with an offence punishable with death or transportation for life.
7: In the case of Noor Samand v. State (1968 P Cr. L J 1671) the Supreme Court of Pakistan has held, that barring an exceptional case an order committing an accused person under Chapter XVIII to stand trial for the commission of an offence punishable with death or transportation for life would constitute sufficient ground for refusing or cancelling bail. In a recent case Muhammad Shafiq v.
Muhammad Hanif (1970 SCMR 143) it was observed, that ordinarily for the question of grant of bail, the-Court has to look at the material' placed before it by the investigating agency and form an opinion that prima facie there is some tangible evidence, which if left unrebutted, would lead to the inference. Of guilt and on these basis grant or refuse bail. The Supreme Court in the case of Nadra v. Jamait Khan (PLD 1968 SC 310), observed: "Ordinarily the framing of a charge upon taking evidence referred to in section 208 and examination of the accused would furnish a ground for such a belief." as is required to be formed under section 497 of the Criminal Procedure Code. In the case of Ghulam Farid and another v. State (1969 SCMR 80), it was observed, that commitment is by itself sufficient to show that a prima facie case exists. The same view was expressed in the case of Ahmad Bakhsh v. State (1969 SCMR 266).
8. The ratio decidendi of above-mentioned cases, therefore, seems to be, that where a person is charged of an offence punishable with death or transportation for life, his bail can be cancelled, provided his case does not come within the purview of proviso to subsection (1) of section 497.
9. In view of the fact, that the petitioner is more than 16 years of age and has been committed to the Court of Session on a charge of murder, while agreeing that his bail could not have been cancelled by the learned Additional Sessions Judge. I cancel it myself. The petition thus stands dismissed.