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Petition for Special Leave to Appeal No. 526 of 1978, decided on 21st February, 1979.
(On appeal from the order of the Lahore High Court dated the 27th of November, 1978 in Criminal Miscellaneous No. 3281-B of 1978).
S. 497(0), proviso first-Bail-School leaving certificate of accused showing accused having been above 16 years of age at time of commission of offence-Allegation levelled against accused, as long as not rebutted, making him liable to be sentenced to death or to life imprisonment-Accused case, held, not covered by proviso first to S. 4970), hence, refusal of bail not interfered with.
Hassan Ahmad Khan Kanwar, Advocate and Sh. Salahuddin, Advocate-on Record for Petitioner.
Nusrutullah, Senior Advocate and Ijaz All, Advocate-op-Record for the State.
Date of hearing : 21st February, 1979.
.-Khalil petitioner was accused along with his father Siddiq of an offence under section 302/34 of the Pakistan Penal Code. It is alleged that at about 1-30 'a.m. on the night between the lst and 2nd of December, 1977 the two accused went to the house of Ghulam Haider deceased who was sleeping under the Chhappar in the Verandah of the courtyard of the house, while his uncle Jamal Din and his elder brother Abdul Rashid P. Ws. were sleeping in the Baithak. Abdur Rashid and Jamal Din were awaken by the report of a fire-arm and came out of the Baithak and they saw Ghulam Haider deceased holding Khalil petitioner in a Jappha. Siddiq co-accused who was carrying a .12 bore pistol fired a shot at Ghulam Haider which hit him on the right arm. Ghulam Haider fell down and consequently died of the injuries received by him. Khalil had been granted bail by the learned Additional Sessions Judge (II), Sahiwal on the 24th of June, 1978. His brother Abdur Rashid however made an application for the cancellation of his bail before the High Court. The application was accepted and the petitioner's bail was cancelled by a learned Single Judge of the High Court vide order dated the 27th of November, 1978. Hence the present petition for special leave to appeal.
We have heard the learned counsel for the petitioner at length. The learned counsel urged firstly that no incriminating overt act was attributed to Khalil petitioner and secondly that he .was of a tender age and his action falls within the Exception to subsection (1) of section 497 of the Code 'of Criminal Procedure.
On going through the First Information Report we find that the allegation against the petitioner, if left unrebutted, would render him liable to a sentence of death or imprisonment for life. Moreover from the school leaving certificate produced before us by the petitioner's counsel it is found that even at the time of the commission of the offence he was above 16 years of age. His case is therefore not covered by the Exception to section 497 (1), Cr. P. C.
We see no ground to interfere with the order of the High Court. The petition is consequently dismissed.
Petition dismissed.
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