' Muhammad Sadiq, whose son All Muhammad was killed, by his nephew Amir Alam respondent in this petition has applied for the cancellation of his bail. Amir Alam was admitted to bail by the learned Additional Sessions Judge on 25-7-1977. He gave three reasons for admitting the respondent to bail ; first, that about a year had lapsed and it is yet not known when the trial is likely to commence I second, that it seemed to be a case of sudden fight. The third, which is the main reason and which weighed with him was that "the petitioner is only 14 years which is apparent from the record". All the aforesaid reasons have been challenged by the learned counsel for the petitioner. He submitted that it was a cage of premeditated murder and the observation of sudden fight has seriously prejudiced the case of the prosecution.
' About the age, learned counsel argued that the respondent had not proved by any reliable evidence that he was under sixteen, neither the learned Additional Sessions Judge in his order referred to that record from which the age of the respondent was ascertained. It was further argued that even if the respondent was under sixteen, yet in this case he was not entitled to the concession of bail, as it was he who had killed the deceased.
2. Learned counsel appearing for the State supported the learned counsel for the petitioner, whereas counsel for the respondent opposed this application on the ground that the discretion exercised by the learned Additional Sessions Judge was in accordance with law and called for no interference. It was argued that so far as the observation of sudden fight was concerned, that was not the sole factor which influenced the mind of the learned Additional Sessions Judge in admitting the respondent to bail_ This was a casual observation and it is now well-settled that such an observation made at bail stage is not taken into consideration at the trial. Learned counsel further submitted that if the petitioner apprehends that this observation is going to affect his case, then I should make it clear in my order that at the time of the trial, the trial Court should not at all take this into consideration.
Regarding delay learned counsel submitted that the view taken by the learned Additional Sessions Judge was in accordance with law.
3. The main emphasis of the learned counsel for the respondent was on the factum of age.
Regarding this much emphasis was laid on the proviso to section 497 (1) and it was argued that almost invariably even in capital offences, the person whose case falls within the aforesaid proviso is always given the concession of bail and in support of this reliance was placed on Siraf Din v.
Saghir.Ud-Din Din Muhammad v. The State (2), Muhammad Saleem v. The State (3) and .4shrof v. The State (4).
I may observe here that the learned counsel for the respondent conceded that the category of persons which come within the said proviso are not entitled to the concession of bail as a matter of right but according to counsel this proviso had been so liberally interpreted by this Court as well as by the Supreme Court that it has now become almost the practice which has the force of law that if the case of an accused person falls within the said proviso and he applies for bail, his request is acceded to.
4. Before me, learned counsel for the respondent produced three birth certificates, i,e, of Muhammad Tufail, Saved Iqbal and Munir Hussain sons of Muhammad Hussain and the school leaving certificate of Amir Alam. He also filed the affidavit of Muhammad Hussain, father of the respondent. It is stated therein that at the time of birth of Amir Alam, his grand-father named him as "Muhammad Tufail". Therefore, the birth certificate of Muhammad Tufail is that of Amir Alam and this certificate proved beyond any shadow of doubt that at the time of the alleged occurrence, the respondent was below sixteen. The other side has also filed the affidavit of Muhammad Sadiq petitioner 1 according to which the birth certificate which pertains to Muhammad Tufail is not that of respondent No, 1.
5. I am not going to hold any enquiry about the age of the respondent at this stage. However, the dates of birth given in the birth certificate of Muhammad Tufail and that of the school leaving certificate of respondent No, 1 are different.
The sole point before me is whether the discretion exercised by the learned Additional Sessions Judge calls for aay interference, The occurrence took place at 5 o'clock in the morning on 5-7-1976.
It is a case of solitary accused. The petitioner, who is the real uncle of respondent N o. 1, having lost his son would not blame his nephew unless he was the real culprit. Respondent has not only been named but also the actual killing is attributed to him.
Whether the respondent is under sixteen or not is immaterial In this case. In each case the question of age, infirmity and sex will have to be taken into consideration keeping in view the facts of the particular case, the {{FOOT NOTE}}
(1) 1970 SCM R 30 (2) 1972 P Cr. L J 1229
(3) PLJ 1974 Cr. C (B 1) 442 (4) PLJ 1974 Cr. C (Lab.) 520 {{FOOT NOTE}} nature of the offence, the part attributed to the accused and other surrounding circumstances.
' So far as the finding pertaining to sudden fight is concerned, I do not think this was the proper stage to make this observation and although, according to the learned counsel for the respondent, it was a casual observation, nevertheless it has been taken into consideration by the learned Additional Sessions Judge and that is why he incorporated the same in his order. Similarly, the delay in the commencement of the trial per se is no ground to extend the concession of bail in such a heinous crime.
6. For the foregoing reasons I do not think the respondent was entitled to the concession of bail on the grounds mentioned in the order of the learned Additional Sessions Judge. I would, therefore, allow this petition and cancel the bail of the respondent. He shall be taken into custody forthwith.
None of the observations made by me in this order shall be taken into consideration at the time of commencement of the trial.