' This is an application moved on behalf of above named accused/applicants who are detained for an offence punishable under section 302/324, Qisas and Diyat Ordinance (P.P.C.). -
2. According to the allegations made in the report dated 7-6-1999 the applicants Ghulam Muhammad and Sardar Muhammad between the night of 6-6-1999/7-6-1999 entered in the complainants' house along with one unknown person and sprinkled petrol on Mat. Rabia wife of Meera Jan and then put her on fire who sustained injuries. It is alleged that as a result of such fire the son of complainant received injuries and succumbed to such injuries. It was also alleged that all household articles were ruined. The applicants were arrested on the same day. They have since been remanded to judicial custody. An application for grant of bail was moved but the same was refused by the learned Sessions Judge, Nushki vide order dated 1-7-1999. Hence this application.
3. I have heard Mr. Ehsan-ul-Haq Khan, Advocate learned counsel for applicants and Malik Sikandar Khan, learned Advocate-General for State.
4. Learned counsel for applicants has contended that the applicants have falsely been implicated with the commission of alleged offence on account of enmity. He has submitted that the ages of the applicants are 15 years, 14 years and 16 years respectively. He has also contended that during investigation the complainant has been changing his version as in the report it is indicated that the occurrence took place in his absence but in a statement to the Investigating Officer he has stated that he had also sustained serious burn injuries. In another report submitted to the Assistant Commissioner it was alleged that the accused persons came to the house of complainant with intention to commit Zina with his wife and on her raising cries the accused persons sprinkled petrol on her and household articles and then put fire. It was also maintained in the report. That his son namely Muhammad Arif who was 2-1/2 years' old sustained burn injuries and succumbed to such injuries at the spot. Learned counsel has further contended that Mst. Rabia who was examined by the Investigating Officer on 7-6-1999 has not stated that she asked for Zina. It has also been submitted that the name of applicant Adam Khan does not find place in the report. Applicants' counsel has also argued that witnesses Muhammad Anwar, Pir Muhammad, Muhammad Ashraf, Maulvi Haji Naseer-ud-Din, Mat. Bibi Malku and Ubaidullah who have been examined by the Investigating Officer have not implicated the applicants with the commission of alleged offence and their evidence in the case also goes to prove that fire in the house of complainant was accidental. Learned counsel has lastly argued that as per the findings recorded by the Naib Tehsildar Padag, Cbagai no sufficient evidence had been collected so as to implicate the applicants with the commission of 'alleged offence as according to witnesses the wife ' of complainant was pouring kerosene oil into the lamp which flared-up and resulted injuries to wife of complainant and his 'son who subsequently succumbed to such injuries. Learned counsel in support of his contentions have relied upon the authorities reported in 1984 PCr.LJ 1615, 1977 PCr.LJ 602, Pakistan Criminal Law Journal 1974 Lahore page 450, PLD 1972 Supreme Court page 277.
5. Section 497, Cr.P.C. Prescribes that a person may be released on bail, but should not be so released if there appear reasonable grounds for believing that he ban been guilty of an offence punishable with death or imprisonment for life or imprisonment for 10 years. The case of the accused/applicants fall within the purview of proviso added to such section. The contention raised by the learned counsel for the applicants that the applicants are entitled to bail on the ground of minority appears to have weight.
6. According to section 299-A of die P.P.C. Adult means a person who has attained, being a male the age of 1S years. The ages of the applicants are indicated in the application as 15 years, 14 years and 16 years respectively. The question whether the applicants had attained sufficient maturity at the relevant time is a question of fact which can be ascertained by the trial Court after recording evidence. Therefore, the matter qua the applicants' guilt in the light of the second proviso to section 308 of the Code requires further probe and enquiry. The question actually arises whether in view of these circumstances applicants are entitled to be released on bail. It is the basic principle of law that the bail is not to be refused as a punishment merely on the allegations that a person has committed an offence punishable with death or life unless reasonable grounds appear to exist to disclose their complicity. The circumstances attending to this case bring it within the mischief of section 497, Cr.P.0 kr further enquiry and the accused/applicants are entitled for the grant of bail.
They are accordingly allowed bail provided they furnish sureties in the sum of Rs,50,000 each and P.R. Of like amount to the satisfaction of learned Sessions Judge, Nushki. The prosecution will, however, be at liberty to move for cancellation in case some evidence comes on record.