' Bail is sought by Usman All in a case registered under sections 302/34/109, P.P.C. Vide F.I.R. No,84, dated 10-3-1995 at Police Station Fateh Jang.
2. The allegations, as levelled in the F.I.R. Are that Taj Muhammad Khan and Bahadar Khan were sitting at the Bus Stand of Kot Fateh Khan on 10-3-1995. Usman All petitioner armed with Soti, Abdullah Khan armed with carbine .12 bore and Muhammad Khan armed with .12 bore gun came there. Usman All while addressing Taj Muhammad Khan and Bahadar Khan raised Lalkara that they would be taught a lesson for getting a case registered against his uncle Abdullah Khan.
Muhammad Khan fired at Bahadar Khan with his gun twice as a result whereof he fell down.
Abdullah Khan fired at Taj Muhammad Khan with his .12 bore carbine but by mistake his own brother Muhammad Khan was hit by his gun shot. Abdullah Khan then fired again at Taj Muhammad Khan hitting him in his chest. Taj Muhammad Khan and Bahadar Khan died on the spot. Muhammad Khan brother of Abdullah Khan accused and father of the petitioner also died.
The alleged motive is that TOYOTA HIACE vehicle belonging to Taj Muhammad Khan deceased was burnt by Abdullah Khan accused, a week earlier to the lodging of the F.I.R. A case was registered against him for this incident. Aggrieved by the registration of this case Abdullah Khan, Muhammad Khan and Usman Ali murdered Taj Muhammad Khan and Bahadar Khan, as aforesaid.
3. Sardar Muhammad Ishaque Khan, learned counsel for Usman All petitioner has raised the following contentions, in support of his prayer for grant of bail to his client:---
(i) The petitioner is 16 years of age and a student of Ist Year. Being not adult he cannot be convicted under section 302, P.P.C. He is a minor under section 306 read with section 308, P.P.C. And is not liable to Qisas but he is liable to Diyat only, therefore, prohibitory clause of section 497, Cr.P.C.
Is not applicable qua him, Only proverbial Lalkara is attributed to him. Although he was armed with Soti yet he did not cause injury to any person. Being a young boy and in terms of the language of the Lalkara alleged against him, in the course of ordinary human conduct, he himself should have caused injuries with his Soti but there is no allegation that he caused injury to the deceased. At any rate, the Lalkara from a son to the father cannot be deemed to be of a commanding nature.
(iii) The case of the petitioner is otherwise covered by subsection (2) of section 497, Cr.P.C., as no overt act is attributed to him.
4. Learned counsel for the complainant has vehemently opposed the grant of bail. He has submitted that even if the petitioner is not adult in the sense that he is less than 18 years of age, he is fully grown up having height of S feet and 10 inches and capital punishment can be awarded to him in Ta'zir. He has further argued that although there is no allegation that the petitioner caused injury with the Soti yet there are two blunt weapon injuries on the person of one of the deceased persons, which were obviously inflicted by the petitioner. He has further argued that the petitioner has at any rate abetted the offence and is equally liable for the murder of two persons. Learned state counsel has adopted the arguments addressed by the learned counsel for the complainant, and has opposed the bail application.
5. For the offence of Catl-i-amd capital punishment cannot be awarded to a minor even if he is found to be guilty of murder. A minor is not liable to Qisas under section 306, P.P.C., which reads as under:--- "Qatl-i-amd shall not be liable to Qisas in the following cases, namely:---
(a) When an offender is a minor or insane: Provided that, where a person liable to Qisas associates himself in the commission of the offence with a person not liable to Qisas with the intention of saving himself from Qisas, he shall not be exempted from Qisas;
(b) when an offender causes death of his child or grandchild, howlowsoever; and
(c) when any Wali of the victim is a direct descendant, howlowsoever, of the offender."
Under section 308, P.P.C. a person who is not liable to Qisas under section 306, P.P.C. Is liable to Diyat. Section 308, P.P.C. Is reproduced below:--- "(1) Where an offender guilty of qatl-i-amd is not liable to Oisas under section 306 or the Qisas is not enforceable under clause (c) of section 307, he shall be liable to Diyat: Provided that, where the offender is minor or insane, Diyat shall be payable either from his property or, by such person as may be determined by the Court: Provided further that, where at the time of committing Oatl-i-Amd the offender being A minor, had attained sufficient maturity or being insane, had a lucid interval, so as to be able to realize the consequences of his act. He may also be punished with imprisonment of either description for a term which may extend to fourteen years as Ta'zir, Provided further that, where the Qisas is not enforceable under clause (c) of section 307, the offender shall be liable to Diyat only if there is any Wall other than the offender and if there is no Wall, other than the offender, he shall be punished with imprisonment of either description for a term which may extend to fourteen years as Ta'zir.
(2) Notwithstanding anything contained in subsection (1), the Court, having regard to the facts and circumstances of the case in addition to the punishment of Diyat, may punish the offender with imprisonment of either description for a term which may extend to fourteen years, as Ta'zir".
' A minor means a person who is not an adult vide clause (I) of section 299, P.P.C. An adult is a person who has attained the age of 18 years as per clause (a) of this section. Therefore, the admitted position that emerges is that the petitioner is a minor for the purpose of offence under section 302, P.P.C. Under the second proviso of subsection (1) of section 308, P.P.C. a minor who has attained sufficient maturity, can be punished with imprisonment of either description for a term which may extend to fourteen years as Ta'zir. Therefore, the petitioner though minor, can be punished for a term up to fourteen years as Ta'zir. However, the precise contention which the learned counsel for the petitioner in this behalf has raised is that the question as to whether a minor has attained sufficient maturity, will be determined by the Court at the trial after recording evidence, and therefore, this very question that a minor is liable to Ta'zir is of further inquiry. At this stage when the petitioner has not been put to trial, being a minor he is only liable to Diyat. Thus according to him, petitioner's case is not covered by the prohibitory clause of subsection (1) of section 497, Cr.P.C. And he is entitled to bail. Similar proposition came up for consideration before their lordships of the Supreme Court in Sajjad Ahmad v. Muhammad Amir and another Criminal Appeal No, 372 of 1994. The facts of that case are that Muhammad Amir on the ground of minority was granted bail by the High Court, treating his case to be of further inquiry, as to whether or not he had attained sufficient maturity to understand the consequences of his act, which could be determined on the basis of the evidence to be led by the parties during the trial. The said Muhammad Amir at the time of incident had attained the age of 16 years 8 months and 19 days.
The Honourable Supreme Court held as under:--- "The learned Judge in the High Court took note of the fact that under sections 306 and 308, P.P.C., capital punishment cannot be awarded to a minor even if he is found guilty of murder although under the second proviso of subsection (1) of section 308, P.P.C., he may also be punished with imprisonment of either description for a term which may extend to fourteen years as Ta'zir if at the time of committing Qatl-i-amd the minor offender had attained sufficient maturity to realize the consequences of his act. The learned Judge rightly observed that this aspect of the matter could only be determined during the trial on the basis of evidence adduced by the parties and was, therefore, a case of further inquiry. Thus visualized, the discretion exercised by the learned Judge in allowing .Bail to the respondent under the first proviso to section 497, Cr.P.C., is not open to exception".
' The bail granting order of the High Court was upheld and the appeal of the complainant was dismissed by upholding the view of the learned High Court, that where the minority of the accused, prima facie, stands proved, it is a case of further inquiry on the basis of which bail can be granted to a minor, in a case involving capital punishment.
6. Respectfully following the dictum laid down in the aforequoted judgment of the Supreme Court, I am of the view that the petitioner in the present case being 16 years and a few months of age is a minor and he cannot be awarded capital punishment. Whether or not he had attained sufficient maturity so as to be able to understand the consequences of his act and thus liable to Ta'zir, is a matter of further inquiry which shall be decided by the trial Court after recording the evidence at the trial. Therefore, his case does not fall within the mischief of the prohibitory clause of section 497, Cr.P.C. Till such time that it is held that he was sufficiently mature to understand the consequences of his act and hence liable to Ta'zir, he will be deemed to be liable to the punishment of Diyat only.
7. Apart from the question of minority the petitioner is entitled to bail on the ground that only Lalkara is attributed to him and he is not alleged to have caused injury to any person, although he was alleged to be armed with a Soti. As to whether or not he raised a Lalkara and whether the Lalkara was of a commanding nature will also be determined at the trial.
8. Muhammad Khan brother of Abdullah Khan also died during the occurrence. It is alleged in the F.I.R. That Abdullah Khan fired at Taj Muhammad Khan but by mistake the shot hit his own brother Muhammad Khan instead of hitting Taj Muhammad Khan. Learned counsel for the petitioner has invited my attention to this particular injury suffered by Muhammad Khan deceased. It is described as follows in the post-mortem report:--- "A gun shot inlet would on (L) limber region 3 x 3 c.m blackening and charring present."
9. There appears to be force in the contention raised by the learned counsel that the above injury shows that Muhammad Khan was fired at from a very close range. Prima facie, this injury was unlikely to have been caused by his own brother by mistake. Therefore, there appears to be something more which has not come on record so far, which happened at the time of occurrence.
This also makes it a case of further inquiry for the purpose of grant of bail.
10. For what has been discussed above, I am of the view that there are no reasonable grounds for believing that the petitioner has committed the offence alleged against him and there are sufficient grounds for further inquiry into his guilt. Accordingly, the petitioner has become entitled to the grant of bail.
11. For the aforesaid reasons, petitioner is allowed bail subject to his furnishing bond in the sum of Rs,1,00,000 (Rupees one lac only), with two sureties, each in the like amount, to the satisfaction of Assistant Commissioner, Fateh Jang.
12. It must be stated that nothing said herein will prejudice the prosecution case at the trial, because the observations made above are of tentative nature, made for the purpose of deciding the question of grant of bail only.