' Petitioners Jalal and Abdullah are accused of having alongwith two others, on 24-8-2000 at 13-15 hours near graveyard Government Higher Secondary School Nawanshahr. Abbottabad, caused the death of their class-fellow Qasim son of Mushtaq Ahmad. a young boy of 15/16 years of age by giving him fists and kicks blows.
2. The petitioners submitted applications for grant of bail but they were refused bail vide orders, dated 3-11-2000 and 27-11-2000 respectively. The petitioners have approached this Court with the similar prayer and in support of the bail application Mr. Tehmas Khan Jadoon, Advocate, contended, inter alia, that a perusal of the F.I.R. As well as the magisterial statements of Tahir Gul and Shohaib Khan recorded on 29-8-2000 would reveal that the occurrence had taken place at the spur of moment and there was no element of pre-meditation; that the petitioners were empty- handed and did not use any weapon of offence and thus, there was no intention to kill the deceased and that the number of injuries found on the person of the deceased and number of accused do not commensurate with each other leaving a room for further inquiry within the contemplation of section 497(2), Cr.P.C. Additionally, it was urged that at the time of occurrence the petitioners were minors and this ground alone is considered sufficient for grant of bail. Reliance was placed on case reported in 1986 PCr.LJ 385 (Lahore), 1997 PCr.LJ 1635 (Lahore), 1996 PCr.LJ 166 (Lahore) and 1980 SCMR 784.
3. Mr. Sabir Hussain Tanoli, Advocate for the State on the contrary, opposed the bail application and attempted to argue that the petitioners are directly charged in the promptly lodged report for the murder of their class-fellow Qasim, a specific role has been attributed to them in the commission of offence and mere minority is no ground for enlargement of the petitioners on bail. He relied on 2000 PCr.LJ 60 (Peshawar).
4. I have heard the arguments and submissions of learned counsel for the parties in the light of the material on tile. Admittedly, the petitioners were empty-handed at the relevant time and the crime in question appears to have happened all of a sudden after an exchange of abuses, between the petitioners and co-accused on the one hand and the deceased on the other, over stealing of books, which culminated in the instant turmoil in which a young boy of 15/16 years of age lost his life.
5. So far as the ages of the petitioners are concerned it is evident from the copies of age certificates issued by the Principal, Government Higher Secondary School, Nawanshahr, Abbottabad that the petitioners were born on 30-3-1986 and 20-3-1986 respectively. The crime in question having taken place on 24-8-2000, the petitioners were admittedly below 18 years of age.
The submission of the learned counsel for the petitioners that the concession of bail can be extended to the petitioners on account of being minor at the time of occurrence, appears to have weight.
6. By virtue of the provisions of section 306 of the P.P.C. Qatl-e-Amd is not liable to Qisas in the following three cases:--
(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 299(1) of the P.P.C. a "minor" means a person who is not an "adult". The definition of "adult" originally contained in Qisas and Diyat Ordinance (Ordinance VII of 1990), enforced on 5-9- 1990, was as under:-- ' "Adult means a person, being a male who has attained the age of 18 years, or being a female the age of 16 years, or has attained puberty whichever is earlier."
7. The above definition remained unchanged in three subsequent Ordinances, i.e, Ordinance No,1 of 1991, enforced on 4-1-1991. Ordinance No,XVIII of 1991, enforced on 27-4-1991 and Ordinance No,XXX of 1991 enforced on 24-8-1991. The last mentioned Ordinance, lapsed and was substituted by Ordinance No,IV of 1992, enforced on 24-4-1992. For the first time the definition of the word "adult" under section 299(a) of the P.P.C. Was modified as under:-- ' "Adult means a person who has attained the age of 18 years."
8. Therefore, the admitted position that emerges is that the petitioners are minors for the purpose of offence under section 302, P.P.C. Under the second proviso of subsection (1) of section 308, P.P.C.
Minor who has attained sufficient maturity, can be punished with imprisonment of either description for a' term which may extend to 14 years as Tazir. In Sajjad Ahmad v. Muhammad Amir and another Criminal Appeal No,372 of 1994 it was observed by the Honourable Supreme Court that:-- ' "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 Tazir 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."
9. The petitioners in the present case being below 15 years of age at the time of crime in question, cannot be awarded capital punishment. The question whether the petitioners had attained sufficient maturity at the relevant time is a question of fact which can be suitably determined by the trial Court after recording evidence. Therefore, the matter qua the petitioners' guilt in the light of second proviso to section 308 of the Code requires further probe and inquiry. At this stage the petitioners deserve concession of bail under the provision of section 497(2) of the Cr.P.C. If an authority is needed on the point reference can be made to cases reported in Muhammad Ashraf v.
The State PLD 1991 Lah. 347 and Usman All v. The State 1996 PCr.LJ 166.
10. Apart from the question of minority the petitioners are entitled to bail on the ground that at the time of occurrence they were empty-handed; there was no previous enmity between the parties and the occurrence happened all of a sudden after an exchange of abuses and the record is silent regarding the assault proving fatal.
11. The application of the petitioners is accepted and they are directed to be released on bail on furnishing bail bonds in the sum of Rs,50,000 with two sureties each in the like amount to the satisfaction of Judicial Magistrate, Abbottabad, who shall see that the sureties are local, reliable and men of means.
12. Needless to add here that the observations made above are of tentative nature concerning the order in hand and nothing stated therein will prejudice the prosecution case at the trial.