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Criminal Miscellaneous No. 1153 of 1967, decided on 30th November 1967.

S. 497‑Bail‑Person accused of non‑bailable offence released on bail by Sessions Judge on ground of his being below 16 years‑Order granting‑‑ bail not liable to be recalled after crossing over of statutory limit of 16 years by accused‑Exercises of discretion by Sessions Judge not found to be improper or injurious‑Petition for cancellation of bail rejected.

Afzal Haider for Petitioner.

Sh. Abdul Rahman for Respondent.

Raja Said Akbar, A.‑G. for the State.

Abdul Basit respondent who was sent up along with his brother Ghalib Hussain to stand his trial under section 303/34, P. P. C. was allowed bail by the learned Sessions Judge, Bahawalpur, on 4th April 1967, on ground of age. Although from an entry in the school register he was shown to be 19 years of age, yet from his appearance he looked younger to the learned Sessions Judge in which he was also supported by a doctor's certificate placing the age of the boy at 16 years.

2. The present application for cancellation of bail came up before this Court on 17th April 1967, in the first instance. The main contention raised before my learned brother Sher Bahadur Khan, J. who dealt with this case on three occasions was that the boy was not entitled to enlargement by invocation of the provision contained in the proviso to section 497, Cr. P. C. inasmuch as he was not under 16 years of age. Consequently, his Lordship directed that the boy be got examined by a Radiologist of the Mayo Hospital. Dr. Nasseem Iqbal, Radiologist, examined the respondent on 10th July 1967, and on the basis of his test report indicating the stage in epiphyses, placed his age at about 14 years.

3. The learned counsel for the petitioner who is also supported by the learned Advocate‑General has raised the following three contentions before me :‑

(1) that considered in the light of the school certificate, the age as determined by the Radiologist is simply ridiculous and as such the boy being obviously beyond 16 years of age was riot entitled to enlargement under proviso to section 497, Cr. P. C. ;

(2) that in any case even if the boy was below 16 years of age at the time of the alleged commission of murder on 27th August 1966, the bail already allowed to him is liable to be cancelled on the ground that he has definitely crossed that statutory limits ;

(3) that the discretion vesting in the Sessions Judge to grant bail has not been properly exercised.

4. Having given my anxious consideration to the contentions raised by the learned counsel, I am not convinced that a case is made out for the cancellation of the bail allowed to the respondent. In the first instance the estimate of the respondent's age as emerging from three sources namely, the doctor's placing him at 16, the Radiologist's report assessing the age at 14, and the age assessed by the learned Sessions Judge by appearance, does not tend to show that the boy was not below the age of 16 at the time of the occurrence on 27th August 1966. As regards the second contention that once a discretion was exercised in favour of the respondent on the ground of age the order was liable to be recalled after he had crossed the statutory age limit of 16 years, appears to be patently misconceived and devoid of authority. Coming to the last contention, after having been taken through the F. I. R. I am not satisfied that it is a case of an improper or injurious exercise of discretion.

5. For the foregoing reasons the petition fails and is hereby dismissed.

Petition dismissed.

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