The facts as incorporated in the F.I.R. No,57 of 1998, dated 12-11-1998, Police Station Mirpur are that on the same day at about 1330 hours, the complainant Alam Shar, along with his brother Ghulam Murtaza (now deceased) and other friends, was going from Sakro to Buhara on a bus, when there was some commotion between conductor and the accused party, for which deceased Ghulam Murtaza intervened. It is further alleged in the F.I.R. That accused Muhammad Hanif and his relatives Ghulam Hussain Soomro, Noor Muhammad Soomro and Muhammad Bukhsh Soomro, abused the deceased Ghulam Murtaza for such intervention and gave him physical beating with fists and kicks. It is further alleged that the deceased who was standing on the footboard lost his grip and fell down and as a result succumbed to his injuries while he was being taken to hospital.
2. I have heard Mr. Fareed Ahmed Dayo, Advocate for the applicant/accused and Mr. Muhammad Ismail Memon for the State. In addition to the ground of consistency as held in the case of Abdul Salam v. The State (1980 SCM R 142), Mr. Fareed Ahmed Dayo has pleaded for grant of bail with great vehemence on the ground that present accused was of the age of 17 years and 7 months on the date when the alleged offence was committed and that he being minor, in view of section 299 of the P.P.C. Capital punishment cannot be awarded to the present applicant as provided in sections 306 and 308, P.P.C. He has placed reliance on the case of Mazhar Abbas v. The State (1997 PCr.LJ 1635), Usman Ali v. The State (1996 PCr.LJ 166) and the case of Muhammad Sudheer v.. The State (1998 M LD 1994). On one of the previous dates of hearing, learned counsel for the applicant was asked to file some material in order to tentatively assess the age of the applicant. On 28-1- 1999 a School Leaving Certificate from the Government School Buhara, District Thatta was filed showing the date of birth of present applicant as 4-4-1981. Since this Court was not satisfied from such certificate, the applicant was asked to file some more material in order to ascertain his age.
Today, he has filed the birth certificate issued on 16-2-1999 by the Controller of Examinations, Board of Intermediate and Secondary Education, Hyderabad, Sindh, (ii) Enrolment Card bearing No,68465 issued in the year 1996, showing the date of birth as aforesaid and (iii) Admit Card for the Annual Examination 1996 of Class-IX, which again shows the same date of birth. All the last three documents also contain photographs of the accused, Originals of all these documents were seen and returned and the photocopies were placed on record. I am satisfied that for the tentative assessm ent of the age of the applicant, these documents are sufficient to prima facie prove the age of the applicant/accused. Accordingly, for the bail purpose, t am inclined to treat the age of the applicant on the date of alleged incident as 17 years and 7 months.
3. Reverting to the ground of minority, an adult has been defined in section 299(A) of the P.P.C. As a person who has not attained the age of 18 years. However, nowhere has the minor been defined.
This definition is confined to Chapter XVI of the P.P.C., as it appears from the language of section
299. Before proceeding further, it would be advantageous to quote the relevant provisions of sections 306 and 308, P.P.C. Relied upon by the learned counsel for the applicant:- "306. Qatl-i-amd not liable to Oisas.-- 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 with himself in the commission of the offence 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, how howsoever; and
(c) When any wali of the victim is a direct descendant, how howsoever, of the offender.
307. ...................
308. Punishment in Qatl-i-Amd not liable to qisas. Etc.---(1) Where an offender guilty of Qatl-i- Amd is not liable to qisas 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 of Qatl-i-Amd the offender being a minor, had attained sufficient maturity or being insane, had a lucid interval, so as to be able to realise 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 wali other than offender and if there is no wali 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.
4. Learned counsel for the State, Mr. Muhammad Ismail Memon, has vehemently opposed the grant of this bail application and referred to an unreported case of Shahzad Tahir alias Tariq v. The State (Order dated 29-7-1998 in Criminal Bail Application No,340 of 1998) where the applicant who claimed to be 14 years of age and involved in a murder case, was refused concession of bail by a learned single Judge of this Court on the ground that the provisions of Sindh Children's Act, 1955 are not attracted. Mr. Muhammad Ismail Memon has also referred to the case of Shahbaz Tufail v.
The State (1979 SCM R 235) where bail was declined by the Hon'ble Supreme Court to an accused involved in an offence under section 302, P.P.C. And he claimed to be 18 years of age at the time of commission of offence. It was held, inter alia, by the Hon'ble Supreme Court that under the proviso to subsection (2) of section 497, Cr.P.C. An accused person cannot claim bail as of right just because he was of tender age. He has further relied upon the cases Haji Fazal Elahi v. Miss. Farah Naz and another (1979 SCM R 109), Tahir v. The State (1990 PCr.LI 1198) and Badrus Salam v.
Muhammad Javed and 2 others (1975 PCr.LJ 1442). All these cases except the case of Tahir are from jurisdictions other than the province of Sindh. In the case of Tahir (supra), it was held by a learned single Judge of this Court that an accused involved in an offence under section 302, P.P.C.
Who was above 16 years on the date of occurrence is not entitled to benefit of the first proviso to section 497, Cr.P.C. However, provisions of Sindh Children's Act, 1955 were not considered. I am of the view that in the instant case, the ratio of these cases is not attracted as after the year 1993 when amendments were made in section 299, there was an additional ground for bail available to a juvenile/youthful offender in view of definition of child as given in section 29(a).
5. It would be pertinent to observe that in the cases of Usman All and Muhammad Sudhir (supra) reference was made to an unreported case of Hon'ble Supreme Court titled as Sajjad Ahmad v.
Muhammad Amir and another (Cr. Appeal No,372 of 1997) where bail granted to accused Muhammad Amir who, at the time of incident had attained the age of 16 years, 8 months and 19 days, by Lahore High Court was upheld with the following observations:-- "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-e-Amd the offender had attained sufficient maturity to realise 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."
(Note: Above para. Reproduced from the case Muhammad Sudeer 1998 M LD 1994).
6. As a result of the above discussion, it appears that the present applicant/accused was below the age of 18 years when the alleged offence was committed. The question whether the present applicant/accused had attained sufficient maturity at the relevant time is a question of fact which shall be determined by the trial Court during the trial. For the bail purpose, the punishment suggested in second proviso to section 308, ,P.P.C. Could not be treated as the maximum punishment for depriving a youthful offender of bail privilege, who otherwise is below 18 years of age. In the circumstances, this bail application is accepted. Accused Muhammad Hanif son of Muhammad Khan was granted bail through a short order dated 9-2-1999 upon furnishing one solvent surety in the sum of Rs,200,000 with P.R. Bond in the like amount to the satisfaction of the learned trial Court. These are the reasons for the said short order.