' In the present case Pervaiz Akhtar, Leelu, Jani and Muhammad Akbar have been challaned under section 302/34, P.P.C. In a case filed on 27-10-1983 at Police Station Tharushah, District Nawabshah.
Respondent Akbar has been granted bail before arrest on the plea of alibi whereas Pervez Akhtar has been granted bail after arrest on the ground of age by the learned Sessions Judge, Nawabshah.
2. The bail application of applicants Leelo and Janoo came before me and it was pointed out that co-accused have been granted bail by the learned Sessions Judge therefore I allowed interim bail to both the applicants and issued show-cause notice to the respondent Pervez and Akbar for the cancellation of bail granted by the Sessions Judge.
3. The confirmation of bail and the suo motu cancellation notices to respondents are before me. I have heard together and propose to dispose of by a single order as the case arises out of the same F.I.R.
4. Briefly stated the case of prosecution is that on 27-10-1983 at 9-00 p.m. One Akbar son of Abdul Aziz came to the house of complainant Janoo alias Jan Muhammad and informed him that while he was sitting in a hotel opposite Noor Mehal Talkies where his son Dilshad was standing outside the gate when four persons namely Pervez Akhtar, Leela, Jani and Akbar son of Waliuddin by caste Rajput resident of Tharushah came there armed with knives and daggers. Accused Pervez Akhtar inflicted knife blows on the head of Dilshad while others hit him on his back. On knowing this Janoo came there and saw that his son Dilshad had knife 'injuries on his head and back. He was bleeding and was unconscious. This incident was witnessed by Noor Muhammad and others who rescued Dilshad. The report under section 307/34, P.P.C. Was lodged at 10-30 p.m. The injured Dilshad subsequently died and case was coverted to section 302/34, P.P.C.
5. I have heard Mr. Nooruddin Sarki for applicants Jani and Leelo.He has submitted that main accused Pervez Akhtar and Akbar have been granted bail by the Sessions Judge and it is specifically mentioned in the F.I.R. That injuries caused by Pervez proved fatal due to which Dilshad died. He has argued that no weapon of offence or blood-stained clothes have been secured from the applicants. The only independent witness Abdullah has stated that it was only Pervez Akhtar who gave injuries to the deceased.
6. Mr. Usman Ghani Rashid appearing for the respondents Akhtar and Akbar has submitted that Pervez Akhtar was referred to the Medical Board and his age has been determined to be about 16 years therefore he is entitled to be released on bail. His contention is that the case of applicant Pervez comes within the perview of the Sind Children Act, 1955 and he is not to be sentenced to death and or imprisonment for life therefore he has rightly been granted bail by the learned Sessions Judge. As regards Akber the learned counsel has stated that he was admitted in Chandka Medical Hospital, Larkana on the day of the incident and he has rightly been granted bail on considering of plea of Alibi. On the point of Alibi Mr. Usman Ghani Rashid has referred to the cases reported in 1975 SCMR 184 and 1981 SCMR 734. He has also relied on cases reported in 1983 P Cr. L J 338, 1978 P Cr. L J 799 and 1974 P Cr. L J 442.
7. I have also heard Mr. M.I. Memon, learned Additional Advocate General. He has submitted that names of all the accused have specifically been mentioned in the F.I.R. And it is stated that they caused injuries to deceased Dilshad. He has referred to the post-mortem reports and pointed out that four incised wounds, by sharp-edged weapon, were found on the person of deceased Dilshad when injury No,1 was individually sufficient to cause death and furthermore death took place due to shock and haemorrhage as a result of above-mentioned injuries caused by sharp-cutting weapon. However, Mr. M.I. Memon, is of the view that considering the provisions of Sind Children Act the bail to Pervez Akhtar may not be cancelled as he has rightly been granted bail.
8. In the present case, the names of all the accused have specifically been mentioned in F.I.R. And it is stated that all were armed with sharp-edged weapons and caused injuries to deceased Dilshad.
During the investigation P.W. Akber son of Abdul Aziz, Noor Muhammad Rajput have furnished ocular testimony and implicated all these accused. As many as four incised wounds by sharp- edged weapons have been found by the Doctor on the person of deceased Dilshad and death was due to the above-mentioned injuries. The first information report of this incident was lodged by father of deceased Dilshad immediately as soon as he was informed about the above incident therefore there is no delay.
9. The respondent-accused Akhtar was arrested on 28-10-1983. The blood-stained knife and clothes were secured from him. He has been granted bail on the sole ground of his age. The learned Sessions Judge has relied upon cases reported in 1974 P Cr. L J 442 and 1983 P Cr. L J 338.
The grounds about the case referring to the Juvenile Court were not raised before the learned Sessions Judge therefore he has not touched this point. The mode of trial under the Children Act is no doubt a different one and as far as punishment is concerned there are various provisions in the Sind Children Act as pointed out by Mr. Usman Ghani Rashid. These all the points can only be considered when finally the trial Court decides the case. At this stage it appears that no such plea has yet been taken before the trial Court nor such order has been passed by the trial Judge under the Sind Children Act, 1955. However, I do not agree with the learned counsel that the accused of capital charge could not be detained in jail. Provisions of sections 64 and 65 read as under:- ' Section 64. "Bail of Children arrested.-- Where a boy or girl apparently under the age of sixteen years is arrested on a charge of a non-bailable offence and cannot be brought forthwith before a Court, competent under this act to try the case, the officer-in-charge of the police station to which such boy or girl is brought, may release the child on bail, if sufficient security is forthcoming, but shall not do so where the release of the child shall bring him into association with any reputed criminal or expose him to moral danger or where his release would defeat the ends of justice.
' Section 65. Custody of children not enlarged on bail.-- Whereas a boy or girl apparently under the age of sixteen years having been arrested is not released under section 64 or otherwise, the officer-in-charge of the police station shall cause him or her to be detained in the prescribed manner until he or she can be brought before a Juvenile Court or a Court empowered under section 8 to exercise the powers of a Juvenile Court."
' Under subsection (2) of section 65 Court is competent to order the detention of the accused though sent up under the Sind Children Act, 1955 and there is no provision specifically that it is his right to be released on bail except as provided under section 64. This is a murder case where specifically the injury on the vital part is attributed to the applicant. The crime weapons and blood- stained clothes have been recovered from him as such on merits he does not deserve to be release on bail. So far ground of age is concerned, the learned Sessions Judge, has not taken into consideration various pronouncements of the superior Courts while granting the bail on the ground of age. In case of Shahbaz Tufial v. State reported in 1978 SCMR 235 it has been observed by their Lordships that under the proviso to section 497(2), Cr.P.C. It is not open to the person to claim bail as of right just because he was of tender age. In another recent case of Kanwar Imamuddin v.
Muhammad Shafi and others reported in 1983 SCMR 793, the Honourable Judges have held as under:- "We are of the view that this was not at all a fit case for the grant of bail. It is true that if an accused person is below the age of 16 years, the Court has a discretion to allow bail even in a case punishable with death or transportation for life but while exercising this discretion the attendant circumstances of the crime cannot be lost sight of. In the allegations made by the prosecution it was the respondent who. Opened the attack on the deceased who was an elderly man, and fired several shots at him from a revolver. The circumstance that he might have acted under the influence of the elder co-accused Liaquat does not appear to have any bearing on the respondent's culpability."
In that case though accused was granted bail by High Court but Supreme Court has cancelled the bail and remanded the accused to custody. I also refer on this point cases reported in 1984 P Cr. L J 1137 which may provide guidelines to the Courts while granting bail on the ground of age. On this point reference could also be made to the cases reported in 1984 P Cr. L J 171 and 1984 P Cr. L J 931. I am of the view that the grant of bail to main accused on the ground of age is not justified therefore I set aside the impugned order of the learned Sessions Judge and order that the accused Akber be remanded to custody forthwith.
10. Co-accused Pervaiz has been granted bail before arrest, by the learned Sessions Judge on the point of alibi that he was in hospital at the time of incident. Before dealing with the point of alibi I like to mention that Supreme Court in various cases have clearly held that bail before arrest is not as a rule but entire case-law on this point has been discussed in case of Murad Khan v. Fazle Subhan and others reported in PLD 1983 SC 82 which provides guidelines for granting bail before arrest and I also refer to a case of Muhammad Safdar and others v. State reported in 1983 SCMR
645. The order of the learned Sessions is silent if accused was involved due to mala fide. The facts of the case relied upon by the learned Judge reported in 1975 SCMR 185 are different. I also refer a case of Kasim and others v. State reported in 1984 SCMR 128 where it has been held by the Supreme Court that opinion to the question of alibi would not be given at the stage when specifically part is attributed to the accused in that case even the name of the accused was shown in column No,2. The bail was not granted on the point of alibi. The facts of the case relied on are different. In that case there was an opinion of the Investigating Officer and report was called from Civil Surgeon and that was constitution petition but in the present case only discharged slip was produced before the learned Judge and on the basis of that slip he granted bail to the applicant.
He has not sent such certificate to the Investigating Officer nor he directed the applicant to join investigation. In this case there is nothing mentioned in the order that there was any mala fide therefore all the principles for the grant of bail before arrest have not been taken into consideration. The order for grant of bail is set aside. The applicants Leelo and Janoo who were granted bail on the ground that co-accused were on bail by the Court of Sessions but as stated above that co-accused were not granted bail on merits but on other circumstances and by this order their bail has also been cancelled. Therefore, there are no grounds to confirm their bail as there is specific allegation against them that they alongwith co-accused caused injuries to deceased. The bail of these present applicants is not confirmed. For the above-stated reasons the bail of accused Janoo, Leelo, Akbar and Pervaiz is cancelled. They may be remanded to custody forthwith. However, all these observations made in this order are of tentative nature and trial Court to decide the case according to law on merits after the evidence is recorded.