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Criminal Petition No. 85-R of 1979, decided on 1lth December 1979.
-- Art. 185(3)-Contention as to affidavit on basis of which High Court allowed bail to respondent being not correct and respondent according to certificate more than 18 years of age on date of occur rence and ceased to be a student-Such medical certificate having not been before High Court while passing order allowing bail, leave to appeal allowed to move High Court for cancellation of bail, in circum stances.
Zafar Mahmood, Senior Advocate Supreme Court instructed by Ch. Akhtar Ali, Advocate-on-Record for Petitioner.
Khan Muhammad Imtlaz Khan, Advocate-on-Record for Respon dent No. 1.
Sh. Riaz Ahmad, Assistant Advocate-General (Punjab) for the State.
Date of hearing: l lth December, 1979.
The petitioner is aggrieved by an order made by a learned Judge of the Lahore High Court on the 3rd of October, 1979, by which he has allowed bail to the respondent Abid Hussain during the pendency of a murder case against him mainly on the ground that he was below the age of 16 years. In recording this conclusion the learned Judge was influenced by the fact that in an affidavit filed before him by the respondent's uncle Muhammad Ashraf it was averred that the boy was 16 years of age and had not yet taken the Matriculation examination.
2. Mr. Zafar Mahmood submits that the affidavit was not correct, as, in fact, respondent Abid Hussain was more than 18 years of age on the date of occurrence, having been born on the 25th of February 1960. In support of this submission, the learned counsel has placed on the record a certified copy of the birth entry relating to one Abid Hussain son of Khan Muhammad son of Fazal Dad. The learned counsel also submits that the respondent bad ceased to be a student and had not, in fact, taken any Matriculation examination, and that the birth entry recorded in the certificate furnished by the school authorities, namely, 11-11-1964, was incorrect.
3. It appears to us that it is a fit case where the petitioner should move the High Court for cancellation of bail on the grounds, which are. Sought to be urged before us, as apparently this material was not before the learned Judge, when passed the impugned order. It seems that the comp lainant was not represented at the time of the hearing of the bail application, and, therefore, his point of view could not be brought to the notice of the learned Judge.
4. In the circumstances the petition is disposed of with the direction that the petitioner may, if so advised, move the High Court for cancellation of bail, and it would be open to him to urge all the grounds, which are sought to be raised before us.
Petition disposed of.
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