Criminal Revision No,18 of 2002 and Criminal Miscellaneous No,284 of 2002 are filed by the same accused/petitioner Ghulam Mustafa against The order of learned Judge, Anti-Terrorism Court, Dera Ismail Khan dated 8-8-2002 arising from case F.I.R No,184 dated 16-6-2002 under section 302/34, P.P.C, of Police Station Saddar, Dera Ismail Khan whereby prayer for transfer of the case from the Anti-Terrorism Court to the Court of ordinary jurisdiction under section 23 of A.T. Act, 1997 and prayer for concession of bail were refused. Since both these matters arise from the same common order are disposed of jointly.
2. Muhammad Naqi Shah lodged report about the murder of his brother Muhammad Taqi Shah. In the averments of his F.I.R, he disclosed that on the preceding night his brother offering the prayer in mosque went to the rainy water channel Mandra Saidan Wali and did not return home. On search, he found the dead body of his brother murdered by unknown persons in the said rainy water channel. He disclosed no enmity with any body and charged none for committing the murder of his deceased brother by means of dagger. During the investigation, the Investigating Officer arrested Pir Ghulam a co-accused of the petitioner on 21-6-2002. On his arrest he disclosed the entire episode of the murder of deceased Muhammad Taqi Shah wherein he also nominated the petitioner as his accomplice. His statement was recorded in Mad No,10 of the daily diary and in light thereof the petitioner was arrayed as an accused in the case.
3. Pir Ghulam, co-accused of the petitioner, was produced on the following day before the Magistrate for recording his confession which was accordingly recorded under sections 104/364, Cr.P.C. In his confessional statement he undertook the entire responsibility of the murder on his own shoulder. He disclosed that lie was serving with the father of petitioner for the last 5/6 months and was also involved in love affairs with the petitioner. On the day of occurrence, a person, namely, Dainra, told the petitioner that Muhammad Taqi Shah (deceased) is calling him but he went to look after the cattle as his job. At 12-00 hours noon he came to the village, took a dagger, onion and chillies from the shop of one Imran. He was busy in cutting the chillies and onions when Sadiq came there and signalled the petitioner that Muhammad Taqi $hah was waiting for him in the rainy water channel which infuriated him and decided to done away the deceased. The petitioner went to meet Muhammad Taqi Shah deceased then alive and he was followed by him. He inflicted stab wounds to Muhammad Taqi Shah with the dagger having a . Broken handle which also caused injuries to his own hands due to the broken handle. Muhammad Taqi Shah succumbed to the injuries and fell in the rainy water channel where he also threw the dagger and was subsequently recovered at his pointation. He and the petitioner both fled away from the spot. The petitioner brought a bicycle from his house wherefrom he went to the farm where his brother Akhtar Zaman was employed. He was taken to the doct for his injuries on the hands.
4. The petitioner was arrested on 23-6-2002 and he was produced before the Magistrate for his confessional statement on 25-6-2002 where his statement was recorded and he also made the same statement as given by Pir Ghulam, his co-accused without implicating himself as an accused. The Investigating Officer not only recorded the statements of Imran and Sadiq appearing in the statement of Pir Ghulam but also recovered the dagger as crime weapon at the pointation of Pir Ghulam.
5. The learned counsel for petitioner contended that there is not an iota of evidence to connect the petitioner with the commission of offence and he could be a better prosecution witness in the murder of deceased and against Pir Ghulam accused but the Investigating Officer has malafidely arrayed him as an accused. The statement of petitioner recorded under sections 164/364, Cr.P.0 is not a confessional statement at all. Further contended that the petitioner was hardly about 13 years old on the day of commission of offence as his date of birth is recorded 13-8-1989 in his school record and he was a student of Class 8th. Being minor he could be tried exclusively by the Court constituted under Juvenile Justice System Ordinance, 2000 (Ordinance XXII of 2000) where under section 4(3), the Courts constituted under the said Ordinance have got the exclusive jurisdiction to try cases in which a child is accused for the commission of offence. The child has been defined as the person below the age of eighteen years under section 2(2) of the Ordinance ibid.
6. The learned Deputy Advocate-General did not oppose the concession of bail to the petitioner as there is not an iota of evidence connecting him with the commission of offence except, the Naqal Mad No,10 dated 21-6-2002 reported by Pir Ghulam co-accused of the petitioner and that the petitioner is below 16 years in light of his school leaving certificate produced by him. He also agreed with the learned counsel for petitioner that accused could be tried only by the Court constituted under the Ordinance No,XXII of 2000 and his case would be bifurcated under section 5 of the Ordinance ibid from the case of his co-accused namely Pir Ghulam.
7. The learned counsel for complainant opposed the concession of bail to the petitioner on the ground that he has provided protection to the accused Pir Ghulam by taking through his bicycle brought froth his house from the place of occurrence to the Datsun-stand and concealing the murder of deceased till his arrest. He conceded at the bar that except that Nagai Mad Report of Pir Ghulam recorded as Naqal Mad No,10 in the daily diary, there is not an iota of evidence to connect him with the commission of offence. As regards the transfer of case from the Court constituted under Anti-Terrorism Act to the Court constituted under Ordinance XXII of 2000, he submitted that age of the petitioner is disputed and unless his age on the date of occurrence is determined below eighteen years after recording evidence in the trial Court, his case could not be bifurcated from Pir Ghulam, his co-. Accused, for trial in the Court constituted under Ordinance XXII of 2000. For rebuttal of assertion of counsel for the petitioner regarding age, he produced a photostat admission form of the petitioner showing his date of birth as 10-12-1985 and also an extract from a private maternity hospital showing the date of birth of the petitioner as 10-2-1985.
8. After hearing the learned counsel for parties, perusal of the record and going through the relevant provision of Ordinance XX of 2000 and Anti-Terrorism Act, 1997 (Act VII of 1997), I arrived at the following conclusion.
9. The petitioner deserves the concession of bail not only on the ground that he is prima facie minor but there is not an iota of evidence connecting him with the commission of offence. The report of Pir Ghulam recorded in Mad No,10 of the daily diary was not fully supported in his judicial confession recorded on the following day respecting the accusation of petitioner. From the perusal of entire record, I found that the petitioner A could be a better prosecution witness against Pir Ghulam but the rough hands of the Investigating Officer has arrayed him as an accused. This is very novel practice introduced in this case that the confessional statement of Pir Ghulam was reduced into Mad No,10 of the daily diary which appears to have been done with a mala fide intent to involve the petitioner as an accomplice a Pir Ghulam in the murder of deceased and for providing him harbou. After commission of the crime. This conduct of the Investigating Officer is very deplorable and the Deputy Advocate-General present in Court is directed to bring such conduct of the Investigating Officer into the notice of his high-ups and to give it effect in his service record. Copy of this order be also sent to the S.S.P. For necessary legal action against the Investigating Officer in the case. Criminal Miscellaneous No,284 of 2000 is, therefore, allowed and the petitioner shall be released on bail provided he furnishes bail bond in the sum of Rs,one lac with two sureties each in the like amount to the satisfaction of Ilaqa/Duty Magistrate.
10. In view of the school leaving certificate produced by the counsel for petitioner showing his date of birth as 13-8-1985 and the photostat copy of admission form produced by the counsel for the complainant showing his date of birth as 10-12-1985, I found that in both the cases, age of the petitioner is below eighteen years. The learned counsel for complainant referred to section 32 Of the Act 27 of 1997 whereunder the Act has been given overriding effect on any other law. This submission of the counsel for the complainant is not acceptable as the Ordinance XXII of 2000 was promulgated on 1st July, 2000 while the overriding effect under the unamended Act 27 of 1997 was enacted on 20th August, 1997 much earlier than the Ordinance ibid and thus the Act 27 of 1997 has no overriding effect on the Ordinance XXII of 2000. After holding that the petitioner is below eighteen years, a child as defined under section 2(h) of Ordinance XXII of 2000, he could only be tried if not discharged during investigation by a Court constituted under Ordinance XXII of 2000. I thus accept the revision petition and direct the prosecution to bifurcate the case of petitioner from the case of Pir Ghulam and if the Investigating Officer found the petitioner reasonable involved in the murder of Muhammad Taqi Shah, challan against him be submitted in the Court constituted under Ordinance XXII of 2000. Both the Criminal Revision No,18 of 2002 and Criminal Miscellaneous No,284 of 2002 are disposed of in above terms.