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Criminal Petition for Special Leave to Appeal No. 11‑R of 1978, decided on 22nd March 1978.

(On appeal from the order of Lahore High Court. Lahore, dated 5th February 1978 passed‑ in Criminal Misc. No. 4571‑B of 1977).

‑‑ Ss. 497 & 498‑Bail‑‑Contentions raised already urged before High Court in previous application although in different form‑Second application, held, rightly dismissed as disclosing no new grounds.

---S. 497 & 498‑Bail‑Question of self defence‑Can only be gone into by trial Court‑Superior Court, held, would avoid to matte any observations on such aspect of case.‑[Private defence, right of].

‑‑‑ S. 497(l) & (2) proviso‑Young age‑Bail‑Claim for bail under proviso to S. 497(2)‑Held, cannot be claimed as a matter of right just because of petitioner accused being of tender years.‑[Bail‑Age].

Q. M. Salim, Advocate and Noor Ahmed Noori, Advocate‑on‑Record for Petitioner.

Nemo for the State

Date of hearing : 22nd March 1978.

‑This petition, which is directed against the order of learned Single Judge of Lahore High Court, dated 5-2‑1978, arises in the following circumstances :‑---

In a case under section 302, P. P. C. in which Shafqat was done to death, petitioner Shahbaz Tufail was arrested on or about 6‑5‑1977. In order to secure bail for himself, he went up to the High Court but his application was rejected on 16‑10‑1977. Thereafter petitioner filed a second application in the High Court for bail but the same also was dismissed by the impugned order. In the High Court the petitioner had sought bail on two grounds :‑

"(1) That when the alleged crime was committed by him, he was a little over 16 years of age ; and

(2) that he had done so in the right of his self‑defence."

In support of these two contentions, quite a few judgments of this Court were cited by his learned counsel. But the learned Judge distinguished them saying that they had no application to the facts of the case The learned Judge further observed that the said two contentions had been urged before him in the previous application, although in a different form, and therefore, the second application moved by the petitioner for grant of bail would not lie because in there no new grounds had been mentioned.

By going through the two orders of the learned Single Judge he seems to have rightly come to the said conclusion. The learned counsel for the, petitioner, however, urged that In the F. I. R. of the case no mention was made of the incised injury suffered by the petitioner and consequently it must be held that the prosecution had suppressed the true version of occurrence as also that petitioner had caused the death of deceased Shafqat in self‑defence. In order to support his contention, the learned counsel argued that soon after the occurrence the father of petitioner went to lodge a counter F. I. R. in Police Station but the S. H. O. declined to do so. And thereafter a writ petition was filed in the High Court so that the S. H. O. could be ordered to do his duty and to that end record the F. I. R. of petitioner. The difficulty in the way of learned counsel, however, is that the occurrence had taken place: on 5‑5‑1977, whereas the writ petition was fired by a client in the High Court on 14‑9‑1977, i.e. after the lapse of about four months. Without commenting upon this conduct of hi client, however, prima facie we have not been impressed by what the learned counsel hat contended. Furthermore, the question of self‑defence can be gone into only by the trial Court and consequently this Court would avoid t make any observations on that aspect of the case.

As to the age of petitioner, the finding of the learned Judge is that according to Radiologist, who had examined the petitioner for his age, the petitioner was about 18 years old. The observation in the impugned order is that when the petitioner was sent to Radiologist for examination his learned counsel had agreed. But when the report of Radiologist was received, the learned counsel was not satisfied and consequently placed on the record of the case a matriculation certificate of petitioner and a copy of his birth certificate to show that when he allegedly committed the crime he was a little over 16 yeas of age. The finding recorded by the learned Single Judge is that the two documents produced by the learned counsel did not tally with each other. Furthermore, under the proviso to ‑subsection (2) of section 497, Cr. P. C. It was not open to a person to claim bail as of right just because he was of tender age. Upon the facts of the case no exception can also be taken to this conclusion of the learned Single Judge.

This petition, therefore, fails and is dismissed.

Petition dismissed.

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