1. ' The facts leading to present application for bail are that applicant/accused is facing trial under sections 302 & 114, P.P.C. Before First Additional Sessions Judge, Dadu. The case arose out of F.I.R.
2. No,84 of 2000 of Police Station, Johi.
3. ' The brief facts of the prosecution case as disclosed in the F.I.R. Lodged by complainant Ali Hassan on 4-12-2000 are reproduced hereinbelow:-- "Complaint is that I, am Hari by profession. 5/6 days back, there was altercation between my brother Ali Gul and Arbelo alias Arboo Khoso, resident of Bahawalpur over Karam Board game in village Bahawalpur, upon which Ali Gul slaped to Arbelo alias Arboo Khoso. Subsequently we compromised the matter. The `Faisla' was made by Rais Rafiq Ahmed Jamali. Yesterday i.e, 312- 2000, I, my brothers Ali Gul, (2) Nawaz and (3) Ali Haider had gone to the hotel of Soomar Qambrani. I, my brothers Nawaz and Ali Haider sat on the same bench, while Ali Gul sat on another bench. At about 6-00 p.m., Arbelo alias Arboo Khoso, (2) Mumtaz and (3) Mirzo both sons of Khamiso Jamali, resident of Bahawalpur came there. Within our sight accused Mumtaz and Mirzo Jamali instigated Arbelo alias Arboo Khoso, that Ali Gul is sitting here, do not spare him and kill him.
4. Both were standing at some distance. Accused Arbelo alias Arboo Khoso took out hatchet from his `Loee' (loin cloth) and inflicted sharp side hatchet blow to Ali Gul with intention to kill him.
5. ' The blow hit him on backs of neck due to which he fell down. Upon `Hakals' raised by us and other persons, accused ran away alongwith hatchet. We removed the injured to Civil Hospital, Dadu for treatment. He was alive for some time and subsequently died. Due to odd hours of night we remained near the dead body and now, I, have appeared and report that accused Arbelo alias Arboo Khoso because of dispute over Karam Board game, after making preparation for taking revenge, at the "-instigation of Mumtaz and Mirzo both sons of Khamiso Jamali caused sharp side hatchet blow, and killed Ali Gul. I, complain. Investigation may be made."
6. ' I have heard Mr. Abdul Rasool Abbasi, learned counsel on behalf of applicant/accused. He has pressed the bail plea on the ground of age.
7. ' I have also heard Mr. Hidayatullah Abbasi and Mr. Syed Madad Ali Shah learned counsel, as amicus curie and Mr. Masood A. Noorani, learned Additional A.-G. On behalf of State.
8. ' Learned 'amicus curie as well as learned Additional A.-G. Stated that the case of applicant/accused is fully covered by the provisions of Juvenile Justice System Ordinance, 2000 and he is entitled to grant of bail.
9. ' The perusal of material placed on record shows that the applicant/accused was referred by the trial Court to Civil Surgeon, Dadu for determination of his age by Medical Board. The Board opined the age of applicant/accused between 17/18 years. The contents of medical certificate are reproduced hereinbelow in toto:-- "Phone No,612053 ' Office of the Civil Surgeon, Civil Hospital Dadu No, CHD/(MED)/-7058, dated 29-11-2001.
10. ' To ' The Honourable Sessions Judge, Dadu.
11. ' Subject: AGE CERTIFICATE ' Reference: Letter No, 8089 dated 27-11-2001.
12. ' I have the honour to Submit that the accused/UTP Arbelo alias Arboo son of Muhabat Khoso, is produced before the undersigned on 29-11-2001.
13. ' He is examined by the Medical Board. From his physical and Radiological examination, the members of the Medical Board are of the opinion that the accused/UTP Arbelo alias Arboo son of Mohabat Khoso, is between 17 and 18 years (seventeen and eighteen years) of his age.
14. ' Marks of Identification:-- ' Mole on nose.
15. ' Moles on chest near the sternal area.
(i) Dr. Ghulam Rasool, Chairman Lashari, Civil Surgeon, (Sd.) Dadu
(ii) Dr. Muhammad Hassan Member (Sd.) Mangi, Radiologist.
(iii) Dr. Ghulam Qasim, Member (Sd.) Chandio, Surgeon.
(iv) Dr. Fida Hussain Member (Sd.)
16. Shaikh, Medical Officer.
17. Sd/- 29-11-2001 (DR. GHULAM RASOOL LASHARI)
18. CIVIL SURGEON, DADU."
19. ' The alleged incident occurred on 3-12-2000 and applicant/accused was examined by the Medical Board on 29-11-2001. In the case of Siraj Din v. Saghiruddin alias Goga and another 1970 SCM R 30, it was held that the age based on X-ray examination found to be 16-17 years is a ground on which bail can be granted in a case which entails capital punishment. In the case of Yousif v. The State reported in 1975 PCr.LJ 936 a D.B. Of this Court following the dicta of apex Court in case of Sirajuddin (supra) observed that though ossification test is a better guide to age of a person yet not an accurate estimate. The margin of one year on either side is possible. The appellant was termed as a `child'.
20. ' The 'child' under section 2(b) of Juvenile Justice System Ordinance, 2000 has been defined as a person who at the time of commission of an offence not attained the age of eighteen years.
21. Section 12 of the Ordinance lays down that no sentence of death could be awarded to a child. It is contemplated under section 10(7) and proviso (a) to section 10(7) of the Ordinance that notwithstanding anything contained in the Code and except where a juvenile Court is of the opinion that the delay in trial of the accused has been occasioned by an act or omission of the accused or any other person acting on his behalf or in exercise of any right or privilege under any law for the time being in force, a child who for commission of an offence, has been detained shall be released on bail if, being accused of an offence punishable with death has been detained for such an offence for a continuous period exceeding one year and whose trial for such an offence has not been concluded.
22. 'Apparently the applicant/accused is a 'child' within the meaning of the provisions of Juvenile Justice System Ordinance, 2000 and the applicant/accused is in jail since last more than two years and his trial is not started, even charge has not been framed in the case. In the identical cases of Raja Amanullah and another v. The State reported in 2002 M LD 1817; Mansoor Ahmed and others v.
23. The State reported in 2002 PCr.LJ 657; Asghar Ali v. The State reported in 2002 M LD 1566 and in unreported case of Attaullah v. The State (Cr.B.A. No,57 of 2003) the accused were granted bail.
24. ' Resultantly the application for bail is allowed. The applicant/accused is granted bail in the sum of Rs,3,00,000 (Rupees three lacs) and P.R. Bond in the like amount to the satisfaction of the trial Court.