ORDER SHEET

IN THE HIGH COURT OF SINDH, KARACHI

Cr. B.A. No. S-1500 of 2014

DATE                                     ORDER WITH SIGNATURE OF JUDGE

02.03.2015

For hearing:

Mr. Aamir Mansoob Qureshi, advocate for the applicant /accused.

Mr. Salahuddin Gandapur, advocate for the complainant.

Mr. Abdullah Rajput, A.P.G., for the State.

ORDER

ZAFAR AHMED RAJPUT, J.- Through instant Criminal Bail Application under Section 497 and 498-A of Cr. P.C. read with Section 561-A of Cr. P.C, the applicant/accused seeks post-arrest bail in Crime/ F.I.R No.216 of 2014, lodged on 13.04.2014 at 0230 hours, by one Shah Khalid S/o. Shah Zameen, under section 302, 324, 337-H(ii) & 34, P.P.C., at Police Station Gulistan-e-Johar, Karachi. Earlier to it, application for grant of bail moved by the applicant before the learned Sessions Judge, Karachi (East) being Cr. Bail Application No. 1507 of 2014, was dismissed by the learned IInd Additional Sessions, Karachi East, vide order dated 21.07.2014.

2.         Briefly stated, the case against the present applicant/accused is that on      12.04.2014 at 2215 hours, the applicant and co-accused Wazir Zaidi caught hold the brother of the complainant, namely, Shah Fahad (now deceased) and co-accused Shehroz took out dagger from belt of his shalwar and inflicted it to deceased under his neck on the chest, resultantly he fell down on the ground and later on he died.

3.         Mr. Aamir Mansoob Qureshi, the learned counsel for the applicant, has contended that the applicant is an innocent orphan minor boy and has been falsely implicated in this case as he is not related with the co-accused and he had no idea about the intention of main accused, when the deceased and the main accused started quarrelling and the applicant in good faith come in between just to give an end to the fight, but all of sudden main accused inflicted dagger below to deceased, which caused his death. He has also contended that the applicant was a juvenile, aged about 17 years, 09 months and 10 days, at the time of alleged incident and the learned trial Court passed the order rejecting the bail of the applicant /accused in a hasty manner without considering the legal grounds raised by the applicant in his bail application. He has also contended that as per contents of FIR the present applicant /accused along with the father of the main accused caught hold the deceased, who was hit by the main accused Shehroz and not by the present applicant /accused. Lastly he has stated that the vicarious liability and common intention cannot be established without recording the evidence hence, the question of applicant’s guilt would require further enquiry and he is; therefore, entitled for grant of bail. In support of his contentions, the learned counsel for applicant has relied upon an unreported decision of Full Bench of the Hon’ble Supreme Court of Pakistan in the case of Muhammad Yousuf Khan Vs. The State (Crl. P.L.A. No.102-K of 2009) and case of Ghulam Rasool Vs. The State (PLD 2010 Karachi 384).

4.         Mr. Salahuddin Gandapur, the learned counsel for the complainant, has opposed the instant application by submitting that the applicant is not a minor and his age in “HULYA FORM” has been recorded as 18 years. He has also contended that the applicant by sharing common intention facilitated the co-accused, who committed intentional murder of complainant’s brother by inflicting dagger blow; therefore, the applicant in not entitled for concession of bail.  In this regard, he has relied upon the case of Barkat Bibi Vs. Gulzar (1979 SCMR 65) and Hakim Ali Vs. State (1979 SCMR 114), wherein the bail granted to accused facing charge of sharing common intention was cancelled by the Divisional Bench of Honourable Supreme Court, holding that the accused played active role by catching hold the deceased to facilitate the co-accused to cause his death.

5.         Mr. Abdullah Rajput, the learned A.P.G., appearing on behalf of the State, has fully supported the arguments advanced by Mr. Salahuddin Gandapur, the learned counsel for the complainant. He has contended that the applicant is vicariously liable for alleged offence as he shared common intention with co-accused.  

6.         I have given due consideration to the arguments advanced by the learned counsel for the parties and perused the material available on record.

7. Learned counsel for the applicant has filed photocopy of the B-Form of applicant/accused issued by the NADRA on 31-12-2003 showing the date of birth of applicant as 09-10-1997.

8.         The allegation against the applicant is only of catching hold the deceased and there is no direct allegation against him of committing murder of the deceased. He has admittedly no relation with the co-accused. The question of vicarious liability of the applicant with regard to the commission of his intention with co-accused Shehroz for inflicting dagger blow at the deceased and its further extension to the result that followed i.e. his death, will have to be determined at the trial to see if guilt of applicant under section 302/34, P.P.C. is established as alleged by the prosecution. The applicability of the Juvenile Justice System Ordinance, 2000 (hereinafter referred to as “the Ordinance, 2000”)  is also to be seen keeping in view the exact age of the accused, which has not been determined by the trial Court, being its own responsibility, notwithstanding the fact that no application was filed by the applicant /accused. This point was specifically raised in earlier bail application filed before the learned trial Court but instead of constituting the Medical Board to fulfil the mandatory requirement of Section 7 of the Ordinance, 2000, the learned trial Court rejected the bail application holding that “this is not the stage to determine the age of accused unless would not sent him before Medical Superintendent for examination through police surgeon for ossification, therefore, this question can be determined after framing of charge against the accused”.

9.         Under the circumstances, I have found the case of the applicant is of further inquiry as envisaged under subsection 2 of Section 497 Cr. P.C. Reliance is placed in this regard upon the case of Muhammad Yousuf Khan (supra) wherein under same set of allegation i.e. catching hold the deceased by the applicant, the bail was granted to accused by the Full Bench of the Hon’ble Supreme Court of Pakistan. The case law cited by the learned counsel for the complainant are so far the facts of the present case concerned are distinguishable. Therefore, the applicant is granted bail subject to furnishing solvent surety in the sum of Rs. 3,00,000=00 (Rs. Three Lacs Only) and P.R. bond in the like amount to the satisfaction of trial Court.

10.       The learned trial Court is directed to refer to the matter immediately to Medical Superintendent, Services Hospital for constitution of Medical Board comprising upon Medical Superintendent himself, Radiologist, Dental Surgeon, Orthopaedic Surgeon and Professor of Medicine with the direction to examine the applicant, determine his age and submit their report within one month. After submission of the report the learned trial Court shall record its findings for determination of the age of the applicant /accused and then proceed further in accordance with law.

                                                                                                            JUDGE

Tahseen/PA