1. ' This joint petition for grant of bail is moved under section 497, Cr.P.C. By Nazim and Dilbar of Village Thak, Chilas, presently in the hands of the law on arraignment for the principle charge of murder {{URDU TEXT}} under sections 302/109/34 of the Pakistan Penal Code.
2. As the petition is moved, chiefly, on the ground of accused's minority, I considered it necessary to direct their production in the Court to personally have a look at them to help determine their approximate age in the presence of two somewhat varying versions coming across from the school leaving certificate and the report submitted by the. Medical Board constituted for the purpose. Both of them, the accused, no doubt have the appearance of youths of mid-teens as certified by the medical opinion. School leaving certificates show them of yet more tender years.
3. The petitioners are thus, within statutory minority in terms of section 306 read with section 299 of the P.P.C.
4. ' Yet the learned counsel's contention that in consideration of section 306(a), P.P.C., Diyat which is the primary punishment for the minor offenders shall be deemed to be the only prescribed punishment for purposes of bail petitions of such offenders thereby taking their case out of the ambit of the prohibitory clause of section 497, Cr.P.C. I am disinclined to accept without reservation.
5. ' Second proviso to section 308(1), P.P.C. Being as much a substantive provision of law as any other provision has a definite purpose to serve, which it cannot be the intention of the law-maker to make light of as some kind of surplusage. Under the said proviso, the sentence of imprisonment rising upto 14 years becoming a real possibility as the requirement of law, it would be most certainly against the letter and spirit of law to routinely treat all murder committed by a statutory minor as a case of Diyat alone and, therefore, outside the ambit of prohibitory clause. Accused's maturity of mind when sufficient at the time of offence to realize the implications of his life destroying act would be incriminology a materially significant circumstance in determining the mens rea and therefore, the .Gravity of the act which must for that reason receive corresponding consideration in dealing with a prayer for bail as well.
6. ' The special provision catering for indulgence towards minors is predicated mainly on laws general resumption that the youth below a certain age by reason of undeveloped minds do not fully realize the consequences of their acts and as such deemed not really possessing the complete unmitigated mens rea necessary to saddle one with full criminal liability. Nonetheless the 2nd proviso creates an exception to this general rule when in a concrete case actual mental capacity of a particular offender, despite his statutory minority, as exhibited in the series of acts constituting the offence directly belies this presumption.
7. ' As to the learned counsel's concern that such an assessment can be possibly made by the Court only after interacting with the accused during the trial which, however, being time-consuming will effectively put such petitions indefinitely on hold the answer is "what must be must be". Hence considering all the existing provisions on the subject together, I feel quite persuaded that to approach the matter as pleaded by the learned petitioners' counsel---treating the offence as if liable to Diyat alone---would be arrant magisterial as opposed to truly juridical. In this regard reference must also be made with advantage to subsection (2) of section 308, P.P.C. Which independent of the 2nd proviso makes a similar provision as to a minor offender's liability to imprisonment upto 14 years in addition to Diyat where facts and circumstances of the offence justify such sentence.
8. ' This is, however, not to say that minority or relative youth, for that matter, is no consideration in responding to an accused's prayer for bail. Far from it. On the contrary I do strongly feel that it would be certainly within the text and policy of law to give full thought, even against the circumstances apparently compelling otherwise, to the tender age of the offender which not only, ordinarily, is indicative of his imperfect understanding further compounded by reckless impetuosity inherent in youth, but also renders the juvenile offender the more vulnerable to the pernicious influences to which a jail inmate is continuously exposed during incarceration. Such considerations therefore, obviously cannot be kept out of reckoning. After all one of the objectives of criminal jurisprudence indeed worthier of all others is reformation of the individual gone delinquent by force of circumstances or as often is the case by mere genetic disposition, which would render the so- called crime yet the more venial if we insist on characterising such juvenile delinquency as crime at all. Thus, in deciding bail matter ruling minority out of consideration is not my point of view.
9. All I am trying to highlight is that in accordance with the provision itself which the learned counsel for the petitioners sought to press into service minority per se will not have the effect of reducing the offence of murder to one liable to Diyat alone and in consequence outside the prohibitory clause. In order to find authentically on whether or not prohibitory clause is attracted, it would seem, it is necessary for the trial to unfold. Only facts thus, emerging throwing light on the offenders' mental age as distinguished from the chronological can provide insight to competently answer the question. Therefore, in all those cases where the opposite view has been relied, in my humble view, law as it exists has not been correctly applied.
10. Now getting back to the petitioners' case, they in spite of their minority seem sufficiently grown up in body and mind. In the course of an informal examination, consistently, they emerged as possessing more than their fair share of street savvy. Even to a level where by mock naivety, of sorts they made a disingenuous attempt to conceal it aiming to trick the Court into believing that the offence was indeed committed by callow youth of undeveloped minds who hardly had the mental capacity to understand the nature of the sanguinary act they committed and realise its consequences at law. Indeed a deft shot at pulling a real fast one by which an inexperienced Judge might have been taken in. But as always, this bit of chicanery, too, ultimately recoiled and came home to roost. Inasmuch as when the "gravity" of the charge was juxtaposed to the accused's rather precocious mental faculties, unabashedly descending at call into deviousness in self-service, they assuredly came out as having forfeited all claim, if ever there was one at law, on Court's indulgence which their learned counsel utmost employed his forensic eloquence to invoke.
11. In view of the foregoing in respectful disagreement with the various authorities such as 1996 PCr.LJ 166 (Lahore), 1997 PCr.0 1635 (Lahore) and 1998 PCr.LJ 24. (Lahore) produced by the learned counsel in support of his view, the petition is dismissed as premature at this pretrial stage for the reasons recorded above.
12. ' Needless to clarify that none of the above observations on the actual mental status of the accused/petitioners, tentative and strictly restricted to the present petition for bail as they are, are intended or ought to influence the Court as the trial in the main case commences.