' Through this order I propose to dispose of this application for bail of the applicant Nasir Hussain in a case arising out of F.I.R. No,216 of 1999, registered at Police Station Orangi Town, Karachi, under section 302, P.P.C. Being aggrieved by the order of the learned 1st Additional Sessions Judge, Karachi (West), who had dismissed applicant's bail plea on 27-9-2000, the applicant has approached this Court for bail.
2. The prosecution version, as unfolded in the F.I.R., is that complainant Muhammad laved alias Punhoon is labourer by profession. He went to see his relatives at Nusrat Bhutto Colony for the last two days. On 15-9-1999 at about 9-00 a.m. His paternal-brother Ashique Hussain, who lives in M.P.R.
Colony, Orangi Town, came at Nusrat Bhutto Colony and disclosed that Nasir shopkeeper had fired upon complainant's younger brother Danish. The complainant immediately came to M.P.R. Colony where he was informed that Danish had been rushed to the hospital. Complainant went to Abbasi Shaheed Hospital and on enquiry from there he went to Jinnah Hospital. Where his brother-in-law Muhammad Afzal told him that Danish had gone to Nasir General Store at 8-1/2 a.m. In the morning for buying eggs where Nasir shopkeeper had caused injuries to Danish by shooting. Earlier they had rushed to Abbasi Shaheed Hospital and took him from there to Jinnah Hospital but Danish succumbed to his injuries. The motive disclosed in the F.I.R. Appears to be quarrel in-between the brother of Nasir and Danish aged about 19 years, resulting in the death of latter. Following the investigation the applicant was sent up to stand trial in the Court of 1st Additional Sessions Judge, Karachi (East).
3. I have heard the learned counsel Mr. Muhammad lqbal, on behalf of the applicant and Mr. Sharafat Ali Khan, for the State and with their assistance I have gone through the material placed on record.
4. It is contended by the learned counsel for the applicant that the applicant is minor and below the age of 12 years. It is further contended that the applicant was referred by the learned trial Court to Medical Superintendent, Services Hospital, Karachi, for ascertaining the age of the applicant. He has invited my attention to certificate, which is at page 157, issued by the Medical Superintendent, Services Hospital, Karachi, the contents whereof show that the applicant is aged about 12 years. To strengthen his contention, he has further produced his birth certificate, issued by the Incharge, Birth and Death Section, K.M.C., Karachi, and School Leaving Certificate of the applicant/accused. In the light of the above arguments, learned counsel for the applicant requests for release of the applicant on bail. The learned counsel for the State concedes to the above legal position and raised no objection to the grant of bail.
5. I have given my anxious thought to the arguments of the learned counsel for the parties. The main ground on which the bail has been sought is age of the applicant/accused. The extract of entries of City Register of Birth in the Municipal Limits of Karachi, issued by the Incharge, Birth and Death Section, Karachi Metropolitan Corporation; the extract from the Birth Register issued by the Headmaster, Government Urdu Boys Primary School No,2, Kasba Colony, Karachi, and certificate issued by Doctor Bashir Ahmed Shaikh, Medical Superintendent, Services Hospital, and Civil Surgeon Karachi, show that the age of the applicant Nasir Hussain was around 12 years. All these documents discussed above further show that applicant Nasir Hussain on the relevant date and time o1 the incident was below 16 years as provided in section 5 of the Sindh Children Act, 1955.
Under the said Act child means a person who is below 16 years at the time of his arrest. Special procedure is provided in the said Act for trial of children. The said Act also prohibits sending of a child to jail. The Sindh Children Act, 1955 is followed by an Ordinance XXII of 2000 known as Juvenile Justice System Ordinance, 2000, which is called as an Ordinance to provide for protection of the rights of children involved in the criminal litigation. The said Act is published vide Gazette of Pakistan, Extraordinary, Part I of 1st July, 2000.
6. Reliance is placed on a case reported as Anwar v. The State 1983 SCM R 1001 in which it has been held as follows:-- ' "The learned Assistant Advocate-General could not raise any objection against genuineness of school leaving certificate and all the entries therein. We are of the opinion that the view expressed by the police was not sufficient to reject the appellants' plea of tender age in view of the entries in the certified copy of the school leaving certificate. The bail is, therefore, accepted and the appellant Muhammad Anwar allowed bail in the sum of Rs,20,000 with two sureties each in the like amount to the satisfaction of the Assistant Commissioner, Bhawal."
7. In another case reported as Sindh Sarwar Gugalli v. State of West Bengal PLD 1958 SC (India) 337, which is of an Indian jurisdiction wherein the birth certificate was accepted as conclusive evidence of the age of the girl involved in the case of a rape.
8. In another unreported case namely Criminal Transfer. Application No,42 of 2000 in which besides transfer of a case, a prayer for bail of the accused was made, who being minors were charged and tried under the Sindh Children Act, 1955. In the said case a Division Bench of this Court, comprising my learned brother Sabihuddin Ahmed, J., and myself, passed an order in the following terms:-- ' "It is surprising that despite a finding to the effect that the applicants were children in terms of Sindh Children Act, 1955, and that the aforesaid Act was applicable in the circumstances they were allowed to be detained in jail for several years. However, without going into details learned A.A.-G. Is agreeable to an order being passed to the effect that they be released and handed over to their parents to ensure their appearance before the trial Court."
9. In the light of the above discussion, I am of the view that the applicant has been able to make out a case for bail and as such he should be released forthwith if not required in any other case upon furnishing one surety in the sum of Rs,50,000 (Rupees fifty thousand) and P.R. Bond in the like amount to the satisfaction of the trial Court.