1. ' Applicant Mashooq seeks bail for offence under sections 302, 337H(ii) and 34, P.P.C. In Crime No,9 of 2001 registered at Police Station Qazi Ahmed. Similar application filed by applicants-accused Mashooq and Hidayatullah before the learned trial Court was dismissed vide order dated 1-7-2002.
2. ' Brief facts of the prosecution case are that on 16-1-2001 at 10-00 a.m. Complainant's son namely Khan aged about 18 years, Pesh Imam of Village Mosque so also teaching/reading Holy Quran Shareef to the children of the village was called by the applicants-accused Mashooq Khoso and Hidayatullah who came out of Mosque and Mashooq fired at his chest who fell down and died while applicant-accused Hidayatullah fired in the air to harass the people not to come to the accused persons.
3. ' Applicant No,2 Hidayatullah was granted bail by this Court on 29-11-2002 with the observation that:-- "As far as the case of Hidayatullah is concerned it would be seen that the only act attributed to him is that of firing in the air and raising of lalkara. In the circumstances it is settled law that the issue of vicarious liability/common intention can only be thrashed out at the trial."
4. ' At that time learned counsel argued that applicant-accused Hidayatullah at the time of incident viz 16-1-2001 was minor in view of birth certificate issued by Nazim UC Kazi Ahmad II his date of birth is 10-3-1986 as such he was aged about 14 and 8 months. Likewise applicant-accused Mashooq on the day of incident was 17 years and two and half months on the basis of birth certificate issued by Nazim Kazi Ahmed and Admit Card record issued by Principal Board of Intermediate and Secondary Education, Hyderabad his date of birth is 1-11-1983. It was further observed as under:-- "I am not satisfied by mere submission of birth certificates of the accused which are signed by the Nazim of the Local Union Council to establish the factum of birth/age. Consequently both the accused shall be produced before the Medical Board to be constituted by the Principal Medical College Nawabshah who shall determine their respective ages which shall be done on 10-12-2002 when both the accused shall be produced before the Principal."
5. ' Vide letter dated 21-1-2003 it was certified as under:-- "All the members of the Special Board on the basis of the Physical Dental and Radiological examination are of the unanimous opinion that the age of accused Mashooque son of Muhammad Saleh Khoso, appears to be about (Twenty) (20) years."
6. ' Mr. Qurban Ali Chohan learned counsel appearing on behalf of the applicant-accused Mashooq has contended that case of applicant-accused falls under subsection (2) of section 497, Cr.P.C. As at the time of incident he was 17 and 2-1/2 months, therefore, he is entitled to bail and that under the Juvenile Justice System Ordinance, 2000 under section 11 he cannot be punished for an offence by sending them into jail. In support of his contention he placed his reliance on Ordinance XXII of 2000 Central Statutes page 385 Juvenile Justice System Ordinance, 2000. In sub-clause (2) definition of child is as under:- "(b) 'child' means a person who at the time of commission of offence has not attained the age of eighteen years".
7. ' Learned counsel in support of his contention that applicant-accused Mashooq was minor at the time of incident also referred to the cases of Asghar Ali v. The State (2002 M LD 1566), Raja Amanullah and another v. The State (2002 M LD 1817), Siraj Din v. Saghiruddin alias Goga and another (1970 SCM R 30).
8. ' Mr. Riazuddin Siddiqui learned counsel appearing on behalf of the State has vehemently opposed the grant of bail to the applicant-accused Mashooq and contended that ground of minority of age was not taken before the learned trial Court, therefore, cannot be allowed to agitate this ground at this stage. In support of his argument he placed reliance on the case of Shahbaz Tufail v. The State (1978 SCM R 235). He also stated that at the time of incident age of accused Mashooq was not 12 to 15 years but as per certificate produced on his behalf shows that at the time of incident he was 17 years 2 and half months, therefore, he is not entitled to bail. He also contended that birth certificate of accused Mashooq dated 18-11-2002 showing his date of birth i,e, 1-11-1983 is fresh and has no previous record then when birth was registered in the Union Council, therefore, not reliable.
9. 'Heard the learned counsel, perused the record, and gone through the law cited by both the learned counsel. The deceased was murdered in broad-daylight. Applicant-accused fired at the chest of the deceased with intention to kill him. According to his birth certificate and contention of his learned counsel that on the day of incident he was 17 years 2 and half months. If he was 17 years two and half months of age he had the knowledge about the fate of incident then intentionally taken revenge of previous enmity. Deceased Pesh Imam of village Mosque was also 18 years young boy. F.I.R. Was promptly registered after the incident and specific name and role has been assigned to the applicant-accused. Recovery was also made from the applicant-accused. No exception of 14-15 years of age is available to the applicant. On 15-1-2003 applicant-accused was examined by the Medical Board and given opinion that he is of about 20 years. Date of incident is 16-1-2001. If calculation is made and from 21-1-2003, then also applicant is about 18 years age.
10. Therefore, case-law cited by the learned counsel is of no help to the applicant-accused. The contention of the learned counsel that in view of the finding of the Medical Board the applicant is entitled to a further relaxation of one year also has no force. According to certificate of age filed by the applicant himself his age is above 17 years and the mere fact of reference to Medical Board confirming the age to be more than that cannot be stretched to have the effect of reducing the age of the applicant under these circumstances. The grant of bail to a juvenile is provided under section 10. Subsections (5) and (6) relate to a child under age of 15 years. However, the case of applicant attracts the provisions of proviso to the said section which reads as follows:-- "Provided that where a child of the age of fifteen years or above is arrested, the Court may refuse to grant bail if there are reasonable grounds to believe that such child is involved in an offence which in its opinion is serious, heinous, gruesome, brutal, sensational in character or shocking to public morality or he is a previous convict of an offence punishable with death or imprisonment for life."
11. ' In view of above discussion and availability of sufficient prima facie evidence involving the applicant with the commission of the offence no case for grant of bail is made out. The application is dismissed.