1. ' Applicant Faqir Muhammad Unar is arrested consequent to an F.I.R. (Crime No,47/88) registered on 9-7-1988 at Police Station Bakrani, District Larkana for the offences under sections 302, 307, 452, 147, 148, 149 and 114 P.P.C.--13-D, Arms Ordinance.
2. ' Briefly, the prosecution case as unfolded in the report is that on the day of occurrence at about 10- 00 p.m. The complainant Haji Abdul Ghafoor Abbasi who is a retired teacher was available alongwith his sons and the P.Ws. In his 'Otaq' where the electric bulbs and tube rods were on when eleven persons including the applicant appeared and entered the courtyard of the Otaq. They were identified in the electric light and all those persons so identified have been named in the F.I.R.
3. With their parentage and residence. It is further disclosed in the F.I.R. That applicant Faqir Muhammad Unar and three other co-accused were armed with Kalashnikovs, three had rifles and the remaining four carried guns. One of the co-accused namely, Altaf Hussain who was armed with Kalashnikov instigated saying that nobody sitting in the Otaq should be left alive and thereafter he opened the fire from his Kalashnikov, following him all the accused fired from their respective weapons as a result of which Shafiq Ahmed, son of the complainant was killed and his another son Bashir Ahmed was fired at by the present applicant. The other witnesses present in the Otaq received fire-arm injuries.
4. ' The motive disclosed in the F.I.R. Is that 2-3 years before one Nisar Unar, the brother of co-accused Altaf Hussain was murdered for which the accused suspected the complainant party and they had been extending threats to the complainant to take revenge.
5. ' Applicant was arrested and was sent up for trial. He moved a bail application before the Sessions Judge, Larkana which was declined by him vide his order dated 6-8-1988., hence this Court is moved for the concession of bail by the applicant.
6. ' Mr. Muhammad Ibrahim Memon has appeared for the applicant and Mr. Abdul Ghafoor Mangi, A.A.-G. For the State. Both the learned counsel have taken me through the pieces of evidence available in the investigation papers. Mr: Mangi, A.A.-G. Has vehemently opposed the grant of bail and I have heard both the learned counsel at length.
7. ' The present bail application has been urged and pressed by the learned counsel for the applicant on the sole ground of age. Mr. Muhammad Ibrahim Memon, learned counsel for the applicant has contended that at the time of commission of crime the applicant was of 15 years and 24 days of age i.e, being below 16 years of age, therefore his case is covered by the first proviso to section 497 Cr.P.C. Which entitles him the concession of bail. Mr. Mangi, A.A.-G. For the State while opposing the bail application has contended that .The case against the applicant is of serious nature and the applicant has been named in the F.I.R. With a specific role of using Kalashnikov thereby injured P.W.
8. Bashir Ahmad and according to him the applicant cannot claim the concession of bail as a matter of right. He further argued that the applicant had fired from fire-arm weapon which he was carrying and is being tried for offences under sections 302-307 etc. In .The attack one person namely, Shafiq Ahmed lost his life and as many as eight persons were injured, therefore concession of bail cannot be claimed by him as a right. Reference was made to the case of Shahbaz Tufail v.
9. The State reported in 1978 SCM R 235.
10. ' Mr. Muhammad Ibrahim Memon in support of his contentions on the point of age has produced school leaving certificate. He has vehemently argued that since the case of applicant is covered by first proviso, he is entitled to bail. Mr. Memon has relied upon a number of decisions in order to show that where accused was under sixteen years of age the Courts had exercised discretion and granted bail. There is no cavil with the proposition but I am of the view and it has been held in many decisions that the Courts while exercising discretion to allow bail to accused person below 16 years of age shall not lose sight of the attending circumstances of the alleged crime, the nature of offence and the circumstances under which such offence is committed. It is an established principle of law that each case is to be decided on its own merits and the circumstances. The present applicant was armed with a sophisticated dangerous weapon like Kalashnikov and being in company of eleven co-accused all of whom were armed with deadly weapons like Kalashnikovs Rifles and guns attacked the complainant party in their Otaq. The motive for the commission of crime is prominently disclosed in the F.I.R. And the participation of the applicant and his companions is not denied specifically in the application. It is emphatically argued that applicant is allowed concession of bail and the discretion be used on the ground of age.
11. ' It is also in the evidence that co-accused Altaf Hussain whose brother was murdered earlier and this crime was the result of avenging the murder, is the uncle of applicant (brother of applicant's father) and he had instigated the assailants as mentioned above. It would not be out of place to point out that with the passage of time the use of automatic weapons has become common these days of which Courts cannot be precluded from taking judicial notice and one of the factors to discourage such tendency, in my view, is that the Courts should be strict in allowing concessions vested in the Courts on mere technicalities when the Courts have to use discretion. Grant of bail on the point of age under the proviso (i) to section 497 Cr.P.C. Is discretionary with the Courts. It reads as under:- "Provided that the Court may direct that any person under the age of sixteen years or any woman or any sick or infirm person accused of such an offence be released on bail."
12. ' After hearing both the learned counsel and taking into consideration the material available with the prosecution, I do not feel inclined, particularly in the facts and circumstances of the case in hand, to exercise discretion in favour of the applicant against whom there is sufficient material on the record and I am of the view that it is at all not a fit case for grant of bail and in the facts and circumstances of the case the applicant is not entitled to concession of bail and there is no justification to use the discretion vested in the Court in favour of the applicant on the ground of age alone. The trial Judge had also rightly refused to exercise discretion in favour of the applicant.
13. ' For the foregoing reasons, I find no merit in this application, hence it is dismissed. However, it is observed that the observations made by me in this order should not influence the trial Judge who is to proceed with the case as the same are tentatively made for the purpose of disposal of this bail application only. Criminal Bail Application No,1020/88 is, therefore, disposed of as dismissed.
14. ' These are the reasons in pursuance of the short order passed by me on 9-10-1988.