' By this order, I propose to dispose of both above entitled applications as they arise out of the same order of the District Criminal Court, Mirpur, made in the same case and common questions of fact and law are involved in them.
2. The brief facts, forming background to the filing of the above entitled applications are that on 3rd March, 1983, Gulzar Ahmad, complainant lodged an F. I. R. With Police Station, Mirpur wherein it was alleged that at about 10 a. m., he was going to his fields to fetch fodder for his cattle and when he reached a place known as `Pehrawalis in village Panyam, he saw Tariq Mahmood, petitioner and Muhammad Khalil, co-accused making an assault on Muhammad Salim (deceased) and that on his alarm, Abdul Majeed and Nazar Muhammad P. Ws. Were also attracted to the scene of occurrence. It was further alleged that the petitioner and the abovesaid co-accused gave stick blows and hatchet blows respectively on the head and the other parts of the body of the victim who, on receipt of the said injury, fell on the ground and became unconscious. The report also contained the allegation that when the above-named accused persons were running from the scene of occurrence, Muhammad Latif, co-accused was also seen joining them in the way, The motive for the crime was alleged to be that 7 to 8 months prior to the occurrence, Muhammad Salim (deceased) had reprimanded and slapped Muhammad Khalil, co-accused on being seen sitting near a well where the women-fock of the village had gone to fetch water. On receipt of the above report, case under section 307/34, A. P. C. Read with section 15 of the Islamic Penal Laws Act, 1974 was registered by the Police which, later on was altered to one under section 302/34, A. P. C.
And under section 5 of the Islamic Penal Laws Act, 1974 on account of injured person having died on the next day due to the injuries received by him at the hands of the petitioner and his companion. The Police, after investigating the case, submitted a challan before the District Criminal Court, Mirpur against the accused, under section 4/5 of the Islamic Penal Laws Act read with section 114 of the A. P. C. Muhammad Latif and Tariq Mahmood, petitioner moved an application before the District Criminal Court. Which was accepted by the said Court to the extent of Muhammad Latif only by its order dated 15th June, 1983. Aggrieved by the above order, Tariq Mahmood, petitioner has filed the present bail application while the complainant has moved an application for the cancellation of the bail already granted by the trial Court to Muhammad Latif, accused-respondent. I have heard the learned counsel for the parties and have also perused the record of the case. Mr. Muhammad Youns Surakhvi. The learned counsel for Tariq Mahmood, petitioner, has made the following submissions in support of the bail application of the aforesaid petitioner
(i) That the petitioner being only 13 years and 3 months old at the time of the alleged occurrence, is entitled to the concession of bail, in view of the proviso (1) to section 497, Cr. P. C. In support of his above arguments, he has referred to cases decided by this Court entitled "Za far lqbal v. The State" and "Muhammad Shafi v. The State" and to the cases reported as 1978 P Cr. L J 649, PLD 1977 Lah.
470, 1980 P Cr. L J J 00 and 1980 P Cr. L J 652.
(ii) That simple injuries are alleged to have been caused by the said petitioner with a stick to Muhammad Salim (deceased) which, in ordinary circumstances, could not cause the death and as such, it remains to be determined by the trial Court as to whether or not the petitioner had inflicted stick-blows with the intention of putting an end to the life of the aforesaid deceased.
(iii) That under the Islamic Laws, a minor is not liable to the punishment of Vasas' and therefore, there is no bar to the grant of bail to the petitioner as the punishment of death cannot be awarded to him.
(iv) That the prosecution has suppressed the circumstances under which Muhammad Khalil, co- accused received injuries which were found on his person soon after his arrest and, therefore, it is a case of further inquiry as determination is still to be made by the trial Court as to whether the accused or the deceased was the aggressor.
4. The learned Additional Advocate-General, Sardar Rafiq Mahmood Khan and the learned counsel for the complainant have vehemently opposed the bail application of the petitioner on the ground that the mere fact that the petitioner. Is of a tender age, does no entitle him to the concession of bail and it is the discretion of Court to either grant or refuse bail to him. They have cited cases entitled as Vaved As/am v. The State' and Tahirur Rehman v. The State' decided by this Court and also cases reported as PLD 1966 Dacca 264, 1967 SC MR 340, PLD 1956 Dacca 382 and 1975 P Cr. L 184, to show that bail can be refused even in cases where accused happens to be a minor below the age of 16 years. It was further contended by them that the petitioner was responsible for causing the death of Muhammad Salim (deceased) as his death had occurred due to the combined effect of the injuries caused by the petitioner and co-accused, Muhammad Khalil. In this respect, the post-mortem report was referred to, wherein the death in question is shown to have been caused by instant haemorrhage due to the head injury and shock by blunt and sharp weapons.
5. In the application for the cancellation of the bail it was argued by the learned counsel for the petitioner that the Court below has erred in allowing bail to Muhammad Latif accused in this case, as he was vicariously liable for the murder of Muhammad Salim (deceased) being a person on whose instance and instigation the co-accused had caused his death by inflicting injuries on his person.
6. I have given my due consideration to the arguments addressed at the bar in both the above titled applications and have also gone through the record of the case. After taking into cosideration the facts and circumstances of the present case, I am of the view that it is a fit case where Tariq Mahmood petitioner deserves to be released on bail, during the pendency of the case.
It is, of course, settled law that a person accused of a non-bailable offence cannot claim bail as a matter of right, under proviso (1) to subsection (I) of section 497, Cr. P. C., but at the same time the case of such an accused does-not fall within the mischief of subsection (I) of the said section which prohibits the grant of bail to a person accused of an offence punishable with death or imprisonment for life with the result that even in a murder case, it is left to the discretion of the competent Court to either allow or refuse the concession of bail, taking into consideration the facts and circumstances of the case. In the present case, the attending facts and circumstances of the case call for the exercise of discretion in favour of bailing out the petitioner who was admittedly of the age of 13 years and 3 months at the time of the alleged commission of offence. The accusation against the petitioner is that he struck stick-blows on the person or Muhammad Salim (deceased), who was also being given hatchet-blow by Muhammad Khalil, co-accused. From the examination of the post-mortem report, it appears that only one lacerated wound was found on the dead body of the deceased on his fore-arm (back side) besides three abrasions on his buttock, leg and left shoulder. The two incised wounds were also found on his scalp, one on left parietal region and the other on occipital region. As the petitioner was alleged to be carrying only stick in his hand at the time of the occurrence, he at the most, could only be responsible for causing the lacerated wounds and abrasions mentioned above. From the opinion of the doctor who conducted the post-mortem, it cannot be said at this stage that the injuries found on the person of the deceased and caused by blunt weapons, were sufficient in themselves to have caused the death of the deceased. The doctor has opined that the death was caused by the insatnt hoemorrhage due to the head injury and shock caused by blunt and sharp weapons. This opinion is ambiguous and unclear leading to no definite conclusion and one fails to understand as to what he means by shock caused by blunt and sharp weapons. Ordinarily, the shock is cause by the injuries inflicted on a person and not by the weapon used for causing such injuries. In view of the above circumstances, it, thus, still remains to be ascertained as to whether or not the petitioner intended to cause the death of Muhammad Salim (deceased) by giving stick-blows to him on his non-vital parts of the body. Similarly, as regards his vicarious liability for the act of the co-accused, Muhammad Khalil who is alleged to have given hatchet-blows on the head of the said deceased, it likewise remains to be determined as to whether or not the petitioner shared common intention with him to causing death of the victim of the crime
7. The tender age of the petitioner who is also stated to be a student, coupled with the aforesaid circumstances, entitles him to be released on bail. Therefore, I admit the petitioner to bail who shall be released from the custody forthwith, provided he furnishes a bail bond in the sum of Rs, 50,000 with one surety in the like amouut to th satisfaction of Additional District Magistrate, Mirpur.
8. So far as the application for the cancellation of bail of Muhammad Latif, accused-respondent is concerned, I do not find any reason for interfering in the discretion exercised by the trial Court in favour of freeing him on bail, because the same cannot be said to have been exercised capriciously or arbitrarily. Not only that no part is ascribed to the aforesaid accused-respondent in the commission of the offence of murder but he was also not seen at the actual place of occurrence when Muhammad Salim (deceased) is alleged to be receiving injuries at the hands of other co-accused. Only evidence available on record against him is that when other co-accused were seen running, after the commission of the offence, he was also seen accompanying them.
There is also nothing on the record to show that prior to the occurrence this accused-respondent had entered into any conspiracy with other co-accused for the murder of Muhammad Salim (deceased) and, therefore mere allegation of his being seen running alongwith the other co- accused, after the occurrence does not provide reasonable grounds for believing that he was also connected with the commission of the offence of murder.
9. In view of the circumstances enumerated above, the involvement of Muhammad Latif, accused- respondent in the offence of murder, requires further inquiry. In this view of the matter, the application of the complainant for the cancellation of bail granted to Muhammad Latif by the trial Court, is hereby rejected.