Applicant Muhammad Azhar, who is detained in Crime No.108 of 1990, Jauharabad Police Station, under section 302/34, P.P.C. Applied for bail before learned 1st Additional Sessions Judge (Central), Karachi, mainly on the ground of tender age, but without success. He has now approached this Court with the same prayer.
2. I have heard Mr. Syed Sami Ahmad, learned counsel for applicant, Mr. Muhammad Nawaz Abbasi, learned counsel for complainant, Mst. Aziz Fatima and Mr. M. Hayat Qureshi, learned counsel for State.
3. It is contended that the applicant was below 16 years of age at the time when the alleged incident took place and consequently his case falls within the scope of first proviso to subsection
(1) of section 497, Cr.P.C., entitling him to the grant of bail. A photo copy of birth certificate is placed on record in an attempt to show that the applicant was born on 12-10-1975. The name of the applicant is not disclosed in this certificate and consequently the same is of no use. The date of birth of the applicant shown in school leaving certificate is 26-1-1976, which is quite different from the one shown in birth certificate. The age of the applicant according to the Medical Board, constituted under the orders of this Court was found between 17-18 years on 24-3-1991, meaning thereby that he was 16-17 years of age when the alleged incident took place.
4. The first proviso to subsection (1) of section 497, Cr.P.C. Is an exception to the general rule of not releasing a person on bail, who, of there appear reasonable grounds for believing, has been guilty of an offence punishable with death, imprisonment for life or 10 years. The language in which this proviso is couched makes it clear that this provision of law is discretionary. However, the policy of law is that very young persons should be granted bail in the absence of some circumstances in the case, which would disentitle them to the grant of bail. The case of Haji Fazal Elahi v. Miss Farah Naz and another reported in 1979 SCMR 109, is a leading judgment on this point, wherein the following observations were made:-- "As we observed, we cannot agree with this view, but we would make it clear that we should not be understood to mean that bail must be granted in all cases where the petitioner is so young. That is obvious, because the said proviso confers discretion on the Court in the matter of bail even when the applicant is a minor. But this discretion must be exercised in the light of the facts and circumstances of the case and further, the policy of the law is that very young persons should be granted bail in the absence of some circumstances in that case which would disentitle the applicants to the grant of bail."
5. The cases reported as Siraj Din v. Saghiruddin alias Goga and another 1970 SCMR 30 and Abdul Wahid and another v. The State 1976 P Cr. L J 717 also support this view.
6. Again the basic question, which must prevail on the mind of the Court while considering the question of bail on this ground, is whether the grant of bail is in the interest of justice or it will thwart the course of justice. It is a case of brutal nature and it is alleged that the applicant and his brother had called deceased Muhammad Nadeem Qureshi, a boy of about 18 years of age from his house and caused him Chhuri blow on his neck, who died in the lap of his mother. The manner in which the incident took place indicates that the applicant acted in a reckless manner, showing the depravity of his character.
7. The cases reported as Badar-us-Salam v Muhammad Javed and 2 others 1975 P Cr. L J 1442, Abbas etc. v. The State 1977 P Cr. L J 421, Shahbaz Tufail v. The State 1978 SCMR 235, Kanwar Imam Din v. Muhammad Rafique and another 1983 SCMR 791, Zahid Hussain alias Munna and another v.
The State 1987 P Cr. L J 1027 and S. Tariq and another v. The State 1990 P Cr. L J 653 make it clear that first proviso to subsection (1) of section 497, Cr.P.C. Is only discretionary and the attending circumstances of the crime in which the bail is applied for, cannot be lost sight while exercising discretion under this proviso.
8. Having regard to the circumstances attending to this case, I see no merits in the present bail application, which is accordingly dismissed. The trial Court is, however directed to start proceedings against the applicant and co-accused immediately, and try to examine complainant Mst. Aziz Fatima within a period of two months from the receipt of this order. It will be open to applicant to repeat his bail application after complainant Mst. Aziz Fatima is examined.
By a short order, dated 11-4-1991 I had dismissed this application and these are the reasons for the said short order.