1. ' The facts leading to present application for bail are that applicant/accused is facing trial before 1st Additional Sessions Judge, Hyderabad in a case under sections 147,. 148, 114, 302, 504, P.P.C.
2. Which arose out of F.I.R. No,6 of 2000 'of Police Station Khaibrani.
3. ' The brief facts of the prosecution case as disclosed in the F.I.R. Lodged by Shauban on 24-2-2003 at police station are reproduced herein "Complaint is that I reside at above 'address and I am Health Technician in Health Department, I and my brother Tooh Sahito reside in the same house and there is dispute over matrimonial affairs since long time between us and All Muhammad Sahito and Ghulam Mustafa Sahito. Ghulam Mustafa Sahito used to ask my brother Tooh that the hand of his girl be given to him on which my brother Tooh used to reply in negative as they are not of good character on which Ghulam Mustafa Sahito who is relative of All Muhammad annoyed.
4. Today on 24-5-2001 I, my brother Tooh, Rasool Bux Sahito, Muhammad Bux Sahito came together in connection with our work at Bus stand Khaibrani and from where we were going together towards Khebar Town, when at about 7-15 hours in the morning reached public street near Government High School Khebar we met with Ghulam Mustafa Sahito, Attaullah Sahito, Shoukat Ali Mehar Sahito, Suleman Sahito who all were armed with hatchets and also Wali Muhammad son of Ahmed Sahito, who abused Tooh and asked that he is not giving the hand of his girl (Sang) and today we will see you. During this, Wali Muhammad instigated them that catch hold of Tooh and don't spare him. On the instigation of Wali Muhammad, all the accused conjointly caused sharp side hatchet blows to Tooh. Due to hatchet injuries, my brother Tooh fell down on the ground. We challenged the accused that don't kill the man and on our Hakals they leaving Tooh ran away alongwith hatchets.
5. Thereafter, we went and found Tooh had hatchet injuries on the left side of his head, neck and on other parts of body and blood was oozing out and he was lying dead. Thereafter, leaving the above named witnesses at the dead body of my deceased brother Tooh, I have come to lodge the report that on the instigation of accused Wali Muhammad, the accused Ghulam Mustafa, Attaullah, Shaukat Ali, Mehar and Suleman with common intention over the dispute of matrimonial affairs have caused sharp side hatchet blows to my brother Tooh and murdered him. Complaint is lodged investigation be made."
6. ' The applicant/accused applied for bail but his bail plea was dismissed by impugned order, dated 13-6-2002.
7. ' I have heard Mr. Rasool Bux Unar, learned counsel appearing on behalf of applicant/accused. He pressed the bail plea on the ground of age.
8. ' I have also heard Mr. Hidayatullah Abbasi, learned counsel appearing on behalf of complainant and Mr. Ali Akbar Lakho, learned counsel appearing on behalf of A.A.-G. For the State. Both the latter learned counsel have opposed the bail plea of applicant/accused.
9. ' The perusal of material placed on record shows that the alleged incident occurred on 24-5-2003.
10. The applicant/accused was referred by the trial Court to Medical Superintendent/Civil Surgeon.
11. Services Hospital, Hyderabad for determination of his age. The applicant/accused was examined on 5-12-2001 and 2-1-2002 by a Medical Board consisting of Head of Department of Surgery, Head of Department of Forensic Medicine, Head of Department of Medicine, Head of Radiology and Head of Department of Orthopedic of Liaquat University of Medical and Health Sciences, Jamshoro. The Medical Board opined the age of applicant/accused to be about 18 years. It will be pertinent to reproduce hereinbelow the contents of certificate in extenso: "Service Hospital, Government of Sindh, Hyderabad. Phone No,653260 ' Office of the Medical Superintendent/Civil Surgeon Services Hospital, Hyderabad.
12. ' No,CS/Hyd/(SP.M.B. Age)/Reg. No,5 of 2002 Hyderabad, dated 1-2-2002.
13. ' Reg. No,50 of 2001 ' Reference: Health Directorate-General Officer/Letter ' No,DGHSS/G-IV(MLC-20-A-2407/08, dated 23-11-2001.
14. ' Subject: Certificate of age.
15. ' Certified that we have examined UTP Attaullah son of Wali Muhammad who appeared before the Board on 5-12-2001 and 2-1-2002.
16. ' From Physical Examination, Radiologist investigations and general appearance we are of the unanimous opinion that his/her age appears to be about 18 (eighteen years) years. (in words).
17. ' Identification marks
(1) mole on right chest (2) scar on left side left eyebrow. Specimen signature/thumb-impression L.T.I.
18. (Sd.) Head of Department Prof. Of Surgery Lum 7 HS Jamshoro(Member)(Sd.) Head of Department Prof. Of Medicine.
19. Lum 7 HS Jamshoro (Member)
20. (Sd.) Head of Department Prof. Of Forensic Medicine Lum and HS Jamshoro(Member)(Sd.) Head of Department Prof.of Radiology Lum and HS Jamshoro (Member)
21. (Sd.) Prof. Of Orthopaedic Surgery Lum and HS Jamshoro(Member)(Sd.) Medical Superintendent/Civil Surgeon Service Hospital Hyderabad (Secretary/ (Convener)
22. (Sd.) Vice-Chancellor/Nominee Liaquat University of Medical and Science Jamshoro (Chairman)
23. ' Copy submitted/forwarded to the:--.
(1) Secretary Health at Karachi.
(2) Director-General Health Sindh, Hyderabad.
(3) Chairman Vice-Chancellor LUM and HS Jamshoro
(4) Monitoring Cell Army, Hyderabad 18 ADMS Cantt., Hyderabad.
(5) Referring Authority/concerned.
24. ' The plain reading of age certificate reproduced hereinabove shows that the age of applicant/accused was about 16-1/2 years on the date of incident.
25. ' A glance over the history of law relating to betterment of children/youthful offenders in Sindh during British era when Sindh was annexed with Bombay shows that the operation of Bombay Children Act, 1924 was extended to Sindh Province in. The year 1936. After the separation of Sindh from Bombay, the Bombay Children Act was continued to apply in Sindh. After independence, in the year 1955 Sindh Children Act (Act XII of 1955) was enacted and in seventies the Sindh Children Act, 1955 ,was extended to the whole Province of Sindh. In this context reference can be made to the case of Muhammad Ahmed alias Anjum v. State reported in PLD 1974 Kar.
26. 459.
27. ' The definition of youthful offender has been defined in section 4(s) of Sindh Children Act, 1955 as under:-- "Youthful offender means any child who has been found to have committed an offence; and"
28. ' The section 5 of Sindh Children Act, 1955 lays down that a person who has not attained the age of sixteen years to be termed as a child for the purpose of Act whereas section 68(1) of Sindh Children Act, 1955 postulates that notwithstanding any thing to the contrary in any law, no youthful offender shall be sentenced to death or transportation or imprisonment.
29. ' In the case of Sirajuddin v. Sageeruddin alias Goga and another reported in 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 Division Bench of this Court following the dicta of apex Court in the case of Sirajuddin (supra) observed that though ossification is a better guide of age of a person yet not accurate estimate, the margin of one year on either side is possible and appellant/accused was termed as a child.
30. ' 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 offence not attained the age of 18 years. Section 12 of the Juvenile Justice System' 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 Juvenile Justice System 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 any exercise of 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.
31. ' In the case of Raja Amanullah and others v. The State reported in 2002 M LD 1817 it was observed as under:-- "The Juvenile Justice System Ordinance, 2000, has been promulgated, inter alia, to provide for protection of children involved in criminal litigation and their rehabilitation in society. Being a beneficial legislation for the welfare of the children involved in criminal offences, it has to be given a liberal interpretation to achieve its objects to create conditions and environment so that children below the age of 18 years involved in criminal litigation may be provided an opportunity to become useful and honourable members of the society."
32. ' In the case of Mansoor Ahmed and others v. The State reported in 2002 PCr.LJ 657 the applicant who was not above 17 years of age at the time of incident was termed as child under section 10 of the Juvenile Justice System Ordinance and was granted bail.
33. ' Yet in another case of Asghar Ali v. The State reported in 2002 M LD 1566 the applicant/accused who was aged about 17 years, 7 months and 4 days on the date of commission of offence was termed as a child and he was granted bail by a Bench of this Court. The 'relevant observations are reproduced hereinbelow:-- "Admittedly, the applicant was minor within the meaning of clause (a) read with (i) to section 299, P.P.C. And as such was of liable to Qisas as contemplated under clause (a) to section 306, P.P.C. In that event if the applicant is found guilty of Qatl-i-Amd he will be liable to Diyat."
34. ' In the context of sufficient maturity of the accused as laid down under lInd proviso to section 308(1), P.P.C. It has been observed in the case of Asghar Ali (ibid) that the maturity of the mind of accused could be adjudged by trial Court after the assessment of evidence adduced by the parties to proceedings and at the stage of bail it would be premature to assess the state of mind.
35. ' It has been further observed in the case of Asghar Ali (supra) as under:-- "As for the contention based on clause (a) of section 12 of Juvenile Justice System Ordinance, 2000, nothing can clearly be spelt out from the conflicting provisions as on one side under section 12 of the punishment of death to a child has been expressly barred/excluded while under clause (a) to subsection (7) of section 10 of the same Ordinance, it is laid down that a child facing a case punishable with death can be allowed this concession only when he has remained in custody for more than one year. Apparently this subsection can be related to offence punishable with death and not the punishment to be awarded to an accused."
36. ' Admittedly, the applicant/accused has remained in jail for more than a year. Resultantly the bail application is allowed. The applicant/accused is granted bail in the sum of Rs,3,00,000 (Rs, three lacs) and P.R. Bond in the like amount to the satisfaction of the trial Court.