' In the case in hand the petitioner, Nisar Khan, is charged for having attempted at the life of respondent No, 1/complainant by firing at him with his pistol at the instancevf his co-accused Badshah. After the occurrence the petitioner went into hiding. The motive for the commission of the offence as alleged is that the petitioner's brother was hit by aerial firing and resultantly died for which the complainant was charged.
2. After his arrest the petitioner approached the Civil Judge/Judicial Magistrate, Hangu (Mr. Shoaib Khan) but failed to obtain bail. He then filed an application for bail before the Additional Sessions Judge, Hangu (Mr. Subhan Sher) who by his order recorded on 5-4-1999 rejected the petitioner's prayer for bail.
3. Hence this bail petition.
4. I have heard Mr. Muhammad Ismail Khattak, Advocate, learned counsel for the petitioner, Mr. Muhammad Asif Khan, Advocate, learned counsel for respondent No, 1 /complainant and Kh. Azhar Rashid, learned Assistant Advocate-General for respondent No,2/State at length. I have also gone through the record of the case as well as the law cited at the bar.
5. The learned counsel for the petitioner at the very outset submitted that the petitioner being a minor boy of about 15 years of age was entitled to be released on bail. In this respect he placed reliance on the following case-law:--- (1 ) 1970 Supreme Court Monthly Review 30 Present: A.R. Cornelius, C.J., & S.A. Rehman, J.
' Siraj Din v. Saghir-ud-Din alias Goga and another.
"Criminal Procedure Code (V of 1898), S. 497---Bail---Age of accused of X-Ray examination found to be 16-17 years. Good ground for bail even in case of capital offence."
(2). 1983 Supreme Court Monthly Review 1001. Present: Aslam Riaz Hussain, Nasim Hasan Shah and M.S. Quraishi, JJ.
' Muhammad Anwar v. The State. ....Ss. 497 & 498---Bail in murder case on ground of tender age of accused---Plea that appellant was below 16 years of age at time of incident supported by his School Leaving Certificate but rejected by High Court on ground that according to Police appellant Was 19 years of age---View expressed by Police regarding age of appellant---Held, not sufficient to reject appellant's plea of tender age in circumstances of case---Bail granted."
6. The learned counsel for the petitioner, therefore, submitted that the Hon'ble Supreme Court of Pakistan has held that tender age is a valid ground for bail even in cases of capital offences and that in the case in hand the petitioner has only been charged for having committed an offence punishable under section 324/34, P.P.C. He, therefore, prayed that the petitioner be released on bail 611 the disposal of the case by the trial Court.
7. On the other hand, the learned Assistant Advocate-General assisted by Mr. Muhammad Asif Khan, Advocate, learned counsel for complainant submitted that bail cannot be claimed as a matter of right just because the petitioner accused is of tender age. According to him the accused, if he is less than of 16 years of age, was not entitled to be granted bail as of Tight because that would amount to give him a licence to commit any offence which he likes. In this respect he placed reliance on the following cases:---
(1) 1978 Supreme Court Monthly Review 235. Present: Qaisar Khan and Ghulam Safdar Shah, JJ.
' Shahbaz Tufail v. The State.
(c) Criminal Procedure Code (V of 1898)---S.497(1) & (2), Proviso-Young age---Bail---claim for bail under proviso to S.497(2)---Held, cannot be claimed as a matter of right just because of petitioner accused being of tender years.
(11) 1992 PCr.0 423.
' Before Muhammad Bashir Khan Jehangiri, J.
' The State v. Muhammad Ramzan and 3 others
(b) Criminal Procedure Code (V of 1898)---Section 497---Penal Code (XLV of 1860), S.377--- Offence of Zina (Enforcement of Hudood) Ordinance (VII of 1979), S.12---Bail, grant of---Accused of less than 16 years of age was not entitled to bail as a matter of right and could not be given a licence to commit any offence which he liked." (1978 SCM R 235).
(c) Age---- ----Accused of 16 years of age was not entitled to bail as a matter of right.
(III) 1996 PCr.0 524 (Peshawar).
' Before Jawaid Nawaz Khan Gandapur, J.
' Mst. Gul Naz v. Qadeer Hussain and another. ----S. 497(5)---Offence of Zina (Enforcement of Hudood) Ordinance (VII of 1979), S.18---Penal Code (XLV of 1860), S.354---Cancellation of bail-%:-Case against accused being one of moral turpitude, fact of his being less than 16 years of age could not be a ground for bail under the first proviso of S.497, Cr.P.C.--- Prosecutrix, a minor girl of 13/14 years of age, had no enmity or ill-will against accused to falsely involve him in the case---Prosecutrfx had directly charged the accused for physically assaulting her by'catching hold of her breast, throwing her on the ground and trying to commit Zina-bil-Jabr with her---Delay in lodging the F.I.R. Had been reasonably explained--- Reasonable grounds, thus, existed to believe that the accused prima facie was connected with the commission of the offence with which he was charged-Bail granted to accused by Sessions Court was cancelled in circumstances.
8. After having gone through the facts of the case in hand as well as the case-law cited at the Bar, I am of the view that the cases referred by the learned Assistant Advocate-General assisted by Mr. Muhammad Asif Khan, Advocate, learned counsel for the complainant, have no bearing on the facts of the case in hand. In the first case the petitioner was not granted bail because he was charged for having committed murder. In the second case the bail granted to the accused was cancelled by the High Court because he was charged for having committed an offence punishable under section 377, P.P.C. Read with section 12, Offences of Zina (Enforcement of Hudood) Ordinance, 1979. Similarly in the third case to the accused was granted bail and the same was recalled by the High Court because the prosecutrix, a minor girl of 13/14 years of age having no enmity or ill-will to involve the accused falsely in the case had directly charged the accused for physically assaulting her and trying to commit Zina-bil-Jabr with her.
9. On the other hand, the case-law cited at the bar by the petitioner's counsel would fully apply to the facts of the present case.
10. In the circumstances the petitioner's application for bail is accepted.
11. The petitioner shall be released forthwith, if not required in any other case, provided he furnishes bail bonds in the sum of Rs,1,00,000 (Rs, One lac only) with two sureties, each in the like amount, to the Satisfaction of the Additional Registrar/Deputy Registrar of this Court.
13. The Additional Registrar/Deputy Registrar shall see that the sureties are respectable persons and men of means having sufficient property in their names and hail from the settled areas of District Hangu. Attested copies of their property. Documents/identity cards shall be obtained from them and placed on file for record.