1. ' This bail application has been moved for applicant Tahir who has been sent up to stand trial under section 302/34/201, P.P.C., with co-accused Muhammad Ayoob and Boota. Briefly the facts are that F.I.R. Was lodged by one Muhammad Anwar on 10-12-1988 at Police Station Daur District Nawabshah to the effect that his uncle Muhammad Akram who is a hawker and the present applicant Tahir were friends, but about 2/3 days prior to lodging of the F.I.R. They had quarreled and the present applicant had extended threats to said Muhammad Akram. On the day of the report in the evening time the present applicant took away Muhammad Akram with him to settle their dispute and both of them went towards the land. It is further contended in the F.I.R. That since the said Muhammad Akram did not return for quite some time, the complainant along with his father Bashir and another uncle Tajuddin went towards the Banana garden of Master Latif in their search where they saw present applicant along with co-accused Muhammad Ayoob and Boota. The present applicant and co-accused Ayoob were armed with hatchets while Boota had a spade. The accused were dragging Muhammad Akram inside the Banana garden and within their sight applicant Tahir and co-accused Ayoob inflicted blows with sharp side of their hatchet on the head of Muhammad Akram who fell down. The complainant party raised cries but the accused prevented them from doing so and threatened them not to come near and further, said that they have killed Akram because he was not fair with the present applicant. Thereafter all the three accused dragged Akram inside the Banana garden and after some time all of them went away.
2. Thereafter, the complainant party went there and saw Akram who had died by that time and was covered with Banana waste. The F.I.R. Was lodged and after. Completing the investigation, the police sent up all the three accused for trial. Bail application was moved before the Sessions Judge, Nawabshah for all the three accused which was rejected.
3. ' I have heard Mr. Kazi Azizullah, learned counsel for the applicant. On merits of the case, the learned counsel has submitted that there is a delay of about four hours in lodging F.I.R. He has further contended that there are no marks of dragging at the Wardat and that the witnesses are all related inter se. He has then referred to the statement of P.W. Bashir recorded under section 164, Cr.P.C., who has stated that he did not see the accused giving blows to the deceased. Syed Sarfraz Ahmed, learned A.A.-G. Opposing the bail application has contended that the delay in lodging of the F.I.R. Has been explained as the complainant states that he had gone in search of their Nek Mard Haji Latif but not finding him he came to lodge the report. The learned A.A.-G. Has then explained that the place of occurrence is the Banana garden and the ground there is covered by Banana leaves and is not open earth so as to have any marks of dragging. The learned A.A.-G. Has then contended that the other P.W. Tajuddin in his 164, Cr.P.C. Statement has supported the F.I.R.
4. Thoroughly and has specifically stated that applicant Tahir and co-accused Ayoob gave hatchet blows to the deceased. The learned A.A.-G. Has further contended that the bloodstained hatchet has been recovered from the applicant. The medical evidence has also corroborated the case of the prosecution. The post-mortem report shows that there were two incised wounds 10 c.m. x 1 c.m.
5. Bone deep have been sustained by the deceased, one on the middle central part of the skull and the other over left parietio-occipital region of skull. The opinion of the Medical Officer is that the said injuries were caused by sharp cutting weapon and are sufficient to cause death in ordinary course of nature. In view of above, I find that on erits of the case there is sufficient material to link the applicant with the commission of the offence and he is not entitled to grant of hail.
6. ' Learned counsel for the applicant then took up the plea that the age of the applicant at the time of commission of the offence was below 16 years, 15 years 9 months to be exact as appears from the school certificate produced by the applicant as Annexure 'D' which shows his date of birth to be 1-3-1973 and, therefore, he is entitled to grant of bail under the first proviso to section 497(1), Cr.P.C.
7. Which reads as under:- "Provided that the Court may direct that any person under the age of 16 years or any woman or any sick or infirm person accused of such an offence be released on bail."
8. ' In the present case I had directed the applicant to be examined medically for determination of his age and he was examined by the Resident Medical Officer, Civil Hospital Sukkur, who has certified him to be about 18 years of age on 24-5-1989. This certificate has been issued on the basis of Radiological findings and the general appearance, bodily development and physical examination.
9. The certificate is countersigned by the Civil Surgeon, Civil Hospital, Sukkur. From this certificate it appears that the age of the applicant at the time of commission of offence would be about 17-1/2 years and not below 16 years as mentioned in the above-cited first proviso to section 497(1-), Cr.P.C. The learned counsel for the applicant has stated that there is always a margin of error in the age certificate based on the Radiological report. He has further contended that it is the school certificate which has to be given preference. In support of his contention he has placed reliance on a number of cases. The first case relied upon by the learned counsel is the case of Muhammad Rafiq v. The State 1987 P Cr. L J 1360. In this case the report of the Radiologist had shown the age of the accused to be 17 years while the age by birth certificate was 16 years and it was held by Nasir Aslam Zahid, J., that there was always a margin of a year or so in so far as the ossification test was concerned and bail was granted but in this case the other factor that the fatal blow was not attributed to the accused was also taken into consideration. The second case cited by the learned counsel is that of Siraj Din v. Saghir-ud-Pin alias Goga and another 1970 SCMR 30. In this case also the age of the accused based on X-ray examination was between 16 and 17 years. The next case cited by the learned counsel is that of Muhammad Anwar v. The State 1983 SCMR 1001. In this case the school leaving certificate showed the age of accused to be below 16 years while according to the police his age was 19 years and it was held that the view of the police cannot be sufficient ground to reject the bail plea of the accused. The other case relied upon by the learned counsel is that of Nasir Ali v. The State 1985 P Cr. L J 1220. In this case, Munawar Ali Khan, J. (as he then was), had granted the bail on the ground that the accused was below 16 years of age at the time of occurrence and that State had given no objection to grant of bail. The learned counsel then referred to unreported case of Sadiq v. The State (Criminal Bail Application No,1084 of 1986), wherein this Court had granted the bail on the ground that age of the applicant as shown in the school leaving certificate was 16 years 8 months. The learned counsel has also referred to three other unreported cases of this Court being Criminal Bail Application Nos.1616 of 1986, 517 of 1988 and 39 of 1980. In all these cases the bail was granted on the ground that the age of the applicant was a little over 15 years in the two cases and 14 years in the third case.
10. ' Syed Sarfraz Ahmed, learned AA.-G. Repelling the above contention of the learned counsel for the applicant, has contended that no doubt the margin of error can be extended to the limit of one year either way. According to him the bail in the above-said cases were granted as in no case the age of the accused was certified to be above 17 years at the time of occurrence and therefore, allowing the margin of one year, the possibility of his being 16 years of age could not be ruled out but in the present case the age of accused has been certified to be about 18 years on the date of his examination i,e, 24-5-1989 and therefore, his age at the date of occurrence would be 17 years and 6-1/2 months, therefore, even if the margin of error of one year is taken out then too the age of the accused would be 16 years 6-1/2 months and thus he would not be entitled to grant of bail under the first proviso to section 497(1), Cr.P.C., as the said discretionary concession is allowed only in case the accused is below 16 years of age. He has further contended that the accused cannot claim bail under this proviso as a matter of right on the ground of his being of tender age. He has placed reliance on the case of Shahbaz Tufail v. The State 1978 SCMR 235.
11. The next case relied upon by the learned AA.-G. Is that of Kanwar Imam Din v. Muhammad Rafique and another 1983 SCMR 791, wherein it was held that attendant circumstances of crime cannot be lost sight of while exercising discretion for grant of bail to accused below the age of 16 years and in this case bail granted to the accused by the Lahore High Court was cancelled. The third case relied upon by the learned AA.-G. Is that of Haji Rahimullah v. The State and another 1970 SCMR 514, wherein it was held that age by itself is no ground for bail. The next case relied upon by the learned A.A.-G. Is a Full Bench decision of Peshawar High Court, being the case of Sheikh Hassan v. Bashir Ahmad and another PLD 1966 (W.P.) Pesh. 97, wherein it was held that in order to determine the age of the accused, the best evidence is the X-ray test. In this case, their lordships had preferred the report of the Radiologist over the school leaving certificate. The next case on this point cited by the learned A.A.-G. Is that of Ismail v. The State 1983 P Cr. L J 1750, wherein Z.C. Valiani, J. (as he then was) had accepted the medical certificate of Police Surgeon based on tests with regard to the age in preference to the school certificate and the birth certificate issued by the Municipality. The last case cited by the learned AA.-G. Is that of Javed Aslam and another v. The State 1983 P Cr. L J 2597, wherein a case before Azad Jammu and Kashmir Shariat Court, it was held that the fact that accused was less than 16 years of age at the time of commission of offence does not confer upon him a right to be released on bail under proviso to section 497(4 Cr.P.C. Under the circumstances of the case.
12. I have given anxious consideration to the contentions of the learned counsel for the applicant and the Assistant Advocate-General. From the case-law cited above I am inclined to accept the medical report based on X-ray test, etc. As against the school certificate. As per this medical certificate the age of the applicant as certified therein would be about 17 years 6-1/2 months on the date of the occurrence and even if the margin of error for one year is given, his age would be above 16-1/2 years and he would therefore not be entitled to benefit of the first proviso to section 497(1) Cr.P.C. Which is available in case the accused is below 16 years. It is also clear from the case-law as cited by the learned AA.-G. That age by itself would not be a ground for grant of bail but all the attending circumstances are to be taken into consideration. In the present case the name of the applicant appears in the F.1.R. And he has been attributed an active role of giving one of the two hatchet blows on the head of the deceased which were the cause of his death and as pointed out by the learned AA-G. The blood-stained hatchet has also been recovered from him and the P.Ws. Have supported the prosecution case as well as it is corroborated by the medical evidence. Under these circumstances I am not inclined to accept the contention of the learned counsel for the applicant and the bail application is rejected.
13. ' Accused was granted interim bail and the same is not confirmed and stands cancelled. He is directed to surrender to his bond before trial Court. The trial Court is directed to cause his arrest and remand him to custody.