' The brief facts of the present bail application are that an F.I.R. No, 154/89 was lodged at Police Station Baghdad-ul-Jadeed, District Bahawalpur, on 30-6-1989, under section 302/34, P.P.C.
Against the petitioner and six others by one Muhammad Ameen, brother of the deceased.
2. According to the F.I.R., the deceased, Abdul Sattar was assaulted by the accused party when he was passing by the house of one of the co-accused, Panah Ali. It was further stated therein that Bhag Ali, Panah Ali, Muhammad Hussain and Muhammad Rafique, co-accused had got hold of the deceased, whereupon the present petitioner had inflicted knife blows on the chest and the back of the deceased. The motive was said to be suspicion of the accused that the deceased had established illicit relationship with one Mst. Shakeela and needed to be taught a lesson for having done so.
3. Before dealing with the bail petition it shall be pertinent to deal with the objection raised by the learned counsel for the State, and the learned counsel for the complainant, appearing in the case with the permission of the Court. The objection is as follows:-- ' That the six of the co-accused of the petitioner had been admitted to bail after arrest by the learned Additional Sessions Judge, Bahawalpur, vide his order dated 25-7-1989, and that, thereafter, a petition for cancellation of the said bail was moved before the High Court which was dismissed in limine by my learned brother, Muhammad Munir Khan, J. Vide his order dated 12-9- 1989 in Criminal Miscellaneous No,647-C/B of 1989/BWP.
' Therefore, it was contended that as the said petition for the cancellation of bail had been dealt with and decided and dismissed by my learned brother, Muhammad Munir Khan, J., all the subsequent petitions for bail or cancellation of bail in the same case should be heard and disposed of by his Lordship in view of the principle laid down in The State through Advocate- General, N.-W.F.P. v. Zubair and 4 others PLD 1986 SC 173.
' It was further contended that as the present petitioner's bail was refused by the same trial Court by virtue of the same order by which the co-accused, stated above, were admitted to bail and as the petition for cancellation of the bail of the co-accused, stated above, had assailed the same order before the High Court, therefore, it shall be appropriate if the present bail petition is also heard by the same Honorable Judge, who had dealt with and decided the petition for the cancellation of the bail of the co-accused. It was further elaborated that it shall be appropriate to do so as his Lordship had made observations touching the merits of the case by holding as follows:-- "The learned Additional Sessions Judge has applied his conscious mind to the facts and circumstances of the case and has given sound reasons in support of the conclusions arrived at by him."
' In this respect the learned counsel for the complainant referred to para. 9 of the State v. Zubair and 4 others case.. The relevant portion of the said para. Read out by the learned counsel for the complainant is as follows:- "There would, of course, be cases where it is absolutely impossible to place the second or subsequent bail application before the same learned Judge who had dealt with the earlier bail application of the same accused, or in the same case."
' The learned counsel laid great emphasis on the words .. The same learned Judge who had dealt with the earlier bail application of the same accused, or in the same case."
' The contentions of the learned counsel for the complainant in support of his objection have been noted in its entirety so as to allow him to make out a case for sustaining the objection that he has raised, in any manner he may find it possible to do so.
4. Ordinarily if such an objection is raised there would have been no hesitation in ordering that the present bail petition be placed before my learned brother Muhammad Munir Khan, J., if his Lordship was available at the present Bench. In fact it would have been done forthwith, without going into the merits of the objection. But it so happens that he is at present holding Court at the Principal Seat. Therefore, not to deal with the objection and not to take a decision in respect thereof shall amount to shirking the resposibility entrusted. Therefore, the objection shall be dealt with in accordance with the principle laid down in Zubair's case, stated above.
5. But the contentions, as stated above, are irrelevant, and without force of law. The objection would have been relevant if a bail petition of any of the accused in the present case had been heard and decided by the honorable Judge in question, and in such circumstances the objection would have been sustainable on the strength of the principle laid down in the State through Advocate-General, N.-W.F.P. v. Zubair and 4 others PLD 1986 SC 173 by the Honorable Supreme Court and relied upon by the learned counsel for the complainant. In this respect it may be pointed out that it is not the case of the learned counsel that the bail petition in respect of any of the accused in the present case was dealt with by my learned brother, Muhammad Munir Khan, J., or that the present is a petition for cancellation of the bail of the co-accused.
5-A. Therefore, the contentions of the learned counsel for the complainant in respect of the present bail petition to be heard only by the honorable Judge who had dealt with the petition for cancellation of bail of the co-accused, granted by the lower Court of competent jurisdiction, is devoid of any merit or legal force and is hereby repelled. In this respect reference to the case cited by the learned counsel i,e, The State v. Zubair and 4 others PLD 1986 SC 1733 shall be most appropriate. In the said case, for cancellation of bail, the Honourable Supreme Court has laid down, that successive bail applications must be placed before the same Judge who had dealt with the first bail application and that the counsel must disclose the facts of having filed a previous application and to state the result thereof. In fact the portion of the said judgment read out and relied upon by the learned counsel for the complainant also is to the same effect as its bare reading clearly establishes. As pointed out earlier it is not the case of the learned counsel for the complainant that the petitioner herein or his co-accused had filed any bail application before this Court which had been dealt with by the said honorable Judge of this Court. Furthermore, it needs to be pointed out that the contention of the learned counsel for the complainant that my learned brother, Muhammad Munir Khan, J., had made observations touching the merits of the case also is misconceived because the observations of his Lordship are only in respect of the order of the learned Additional Sessions Judge granting bail to the co-accused, as only that could be the case, as only the to the co-accused by the learned Additional Sessions Judge had been challenged before the High Court, and obviously the principles relevant to the cancellation by High Court of the by the lower Court are different from the principles applicable in exercising the discretion of the grant of bail by the High Court. In this respect, it shall be relevant to quote from the order of my learned brother, Muhammad Munir Khan, J., dismissing the petition for cancellation of bail in question, and it is as follows:-- "I find that once bail is granted by a Court of competent jurisdiction then strong and exceptional grounds would be required for interference with the same."
' For what has been stated above, the objection of the learned counsel for the complainant in respect of their being a bar to the present bail petition being heard by any other Judge of this Court except by my learned brother, Muhammad Munir Khan, J., is irrelevant and without legal force, hence untenable, and the objection was raised only to cause inconvenience and hardship to the petitioner.
' The said objection having been overruled, the bail petition is hereby taken up for consideration.
6. The learned counsel for the petitioner contends for bail on the following grounds:--
(i) That the petitioner is below 16 years of age and that, therefore, his case is covered by the first proviso of section 497(1), Cr.P.C.
(ii) That, in the alternative, the crime had been committed by the petitioner under grave provocation as the honour of his sister was involved.
' To support his contentions, the learned cunsel sought support from the following authorities;--
(i) Muhammad Anwar v. The State. 1983 SCMR 1001.
' Wherein the Honourable Supreme Court granted bail to an accused for being below 16 years of age at the time of incident, and held that the learned Single Judge of the High Court was wrong in rejecting the plea for bail on the basis of having accepted that according to the police the petitioner was 19 years of age.
(ii) Muhammad Ali v. Amjad Ali and another 1986 P Cr. L J 673.
Wherein the contention that the petitioner charged with murder could not be bailed out on the ground of youth alone was repelled and it was further held that youth of the accused was always a ground for bail.
(iii) Asad Khan v. The State 1985 P Cr. L J 1676.
' Wherein the accused charged with murder was granted bail for being below 16 years of age at the time of occurrence. This fact was not denied by the prosecution and, therefore, the accused was granted bail on the ground that his case was covered by the first proviso of section 497, Cr.P.C.
(iv) Siraj Din v. Saghir-ud-Din alias Goga and another 1970 SCMR 30.
' Wherein the Honourable Supreme Court had declined to interfere with the to an accused as he was between 16 and 17 years of age according to X-Ray report and it was held that the age of the accused was a good ground for bail even in a case of capital offence.
7. The learned counsel for the State and the complainant oppose tae bail petition and point out that merely being under 16 years of age does not entitle the petitioner to bail as of right. In this respect reliance was placed on:-
(i) Kanwar Imam Din v. Muhammad Rafique and another 1983 SCMR 791.
' Wherein the to the accused for being below the age of 16 years was cancelled by the Honourable Supreme Court, as the deceased was an elderly man and the accused had opened the attack and had fired several shots at him with a revolver, therefore, it was held that although the Court has discretion to allow bail to an accused below the age of 16 years in a case punishable with death or transportation for life but while exercising this discretion the attending circumstances of the case cannot be lost sight of.
(ii) Abbas etc. v. The State 1977 P Cr. L J 421.
' Wherein the bail was refused to the accused less than 16 years of age and it was held that the grant of bail on consideration of age is a discretion of the Court.
The learned counsel for the State further argued against the grant of bail by pointing out that the petitioner was guilty of a heinous crime, and that the question of grave and sudden provocation cannot be gone into at this stage, and that the challan has been submitted to the Sessions Court, and the trial is about to begin but could not state the exact date on which the trial is likely to commence.
8. I have given my anxious consideration to the contentions of the parties. The authorities cited for and against the present bail petition are to the same effect that an accused charged with capital offence is not entitled to bail as of right for being below 16 years of age under the first proviso of section 497(1), Cr.P.C., and that it is the discretion of the Court that should be exercised keeping in view the attending circumstances of the case.
9. In the present case, the prosecution does not deny the accused being below the age of 16 years, and so determined by the medical examination of the petitioner, ordered by this Court, nor does it deny that the motive for the offence alleged was in respect of the deceased having developed illicit relationship with C one Mst. Shakeela. Therefore, the attending circumstances of the present case make out a case for exercise of the discretion under the first proviso of section 497(1), Cr.P.C.In favour of the petitioner, in addition to that as the challan has been submitted and he is no longer required by the police.
10. In view of what has been stated above, and placing reliance on the authorities cited by the learned counsel for the parties, the petitioner is hereby admitted to bail in the sum of Rs,30,000 (Rupees thirty thousand only) with two D sureties in the like amount to the satisfaction of the Assistant Commissioner/Duty Magistrate, Bahawalpur.