The petitioner has applied for grant of bail in a case registered against him and others vide F.I.R.
No.185 dated 17-6-1995 for offences under sections 302, 109/34 of the P.P.C. At P.S. Miana Gondal, District Mandi Bahauddin.
2. According to the allegations made in the F.I.R., the petitioner was armed with a .12 bore gun and fired at Fateh Muhammad deceased which resulted in his death. The two other accused persons armed with fire-arms had muffled their faces and had not fired during the occurrence. The motive stated in the F.I.R. Is that in the year, 1980 one Fateh Muhammad son of Pehlu was injured whereupon a case for attempted murder was registered against the complainant party including Fateh Muhammad son of Muhammad Khan deceased. They were acquitted by the Trial Court and their acquittal was upheld by the superior Courts. The efforts for compromise between the parties failed whereupon the petitioner who is son of Fateh Muhammad acted in retaliation and killed Fateh Muhammad son of Muhammad Khan, real brother of the complainant.
3. The petitioner's learned counsel mainly urged that at the time of the alleged occurrence, the petitioner was only 14 years and 5 months old and deserved concession of bail under the first proviso to section 497 of the C.P.C. In this connection, he relied on the judgments in the cases of Siraj-ud-Din v. Saghir-ud-Din alias Gofa and another 1970 SCM R 30, Muhammad Saleem v. The State 1985 PCr.LJ 708 and Muhammad Akbar and another v. The State 1992 PCr.LJ 2624. He further urged that as per the medico-legal report, one shot was fired from the front side while the other from the back side. Hence the case was one of further inquiry. On the other hand, learned counsel for the complainant urged that the School Leaving Certificate was obtained on 25-9-1996 after the occurrence and was not reliable; that the Birth Certificate showed the petitioner's date of birth as 2-3-1979 and should be preferred because the factum of birth was got recorded on 10-3-1979 in the register of births. Hence, the petitioner was more than 16 years of age at the time of commission of the offence and did not deserve bail under the first proviso to section 497 of the Cr.P.C. He adds that even otherwise the petitioner could not claim bail as of right on the ground of minority as held in the case of Shahbaz Tufail v. The State 1978 SCM R 235. He also relies on Syed Kaman v. The State 1996 PCr.LJ 537. He further submitted that the petitioner alone had fired at the deceased and the alleged conflict in the medical evidence and the ocular evidence could be resolved at the trial.
4. I have carefully considered the contentions raised by the learned counsel for the parties and perused the material on the record. In the presence of the Birth Certificate showing the petitioner's date of birth as 2-3-1979, the School Leaving Certificate obtained after the occurrence cannot be preferred over the same. The entry in the register of births was made just a week after the petitioner's birth. According to the Birth Certificate, the petitioner was more than 16 years of age and cannot claim benefit of the first proviso to section 497 of the Cr.P.C. The judgments relied upon by 'the petitioner's learned counsel proceed on their own peculiar facts and are of no help to the petitioner. In the case of Muhammad Akbar and another, the petitioner was shown to be below 16 years of age on the basis of School Leaving Certificate. The entry qua the age made in the School Leaving Certificate was neither challenged as being incorrect nor rebutted by an authentic document like Birth Certificate, which is available in the present case. In the case of Siraj Din, the only material regarding age was the X-ray report on the basis of which the petitioner's age was shown to be between 16 and 17 years. Obviously the age was determined by the Doctor on the basis of his guesswo rk and experience and the possibility that the age could be less than 16 years could not altogether be excluded. Hence, the accused petitioner was allowed concession of bail. In the case of Muhammad Saleem, the School Leaving Certificate showed that the petitioner was less than 16 years of age while his age was assessed to be between 16 and 17 years by the Doctor on the basis of X-ray examination. Hence, the Court relied on the entry made in the School Leaving Certificate and granted bail to the accused. The position is not identical in the present case in which authentic birth entry is available to contradict the entry made in the School Leaving Certificate which was obtained after the occurrence. Moreover, minority alone is not sufficient to entitle the accused to claim bail as of right as held in the cases of Shahbaz Tufail and Syed Kamran relied upon by the complainant's learned counsel.
5. Prima facie, the material on the record shows that the petitioner had a strong motive to attack and kill Fateh Muhammad deceased and he alone had fired at him. Even if it is assumed for the sake of argument that one shot was fired by the petitioner while the other was fired by someone from behind, this will not exonerate the petitioner who had played an active role in commission of the offence.
6. For the foregoing reasons, I find no merit in this petition which is dismissed.