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Petition for Special Leave to Appeal No. 310 of 1975, decided on 27th January, 1976.

(On appal from an order of the Lahore High Court made on 1‑7‑1975 in Cr. Miscellaneous No. 2109‑B of 1975).

‑--‑Ss. 497 & 498 read with Penal Code (XLV of 1860), S: 302/34 Bail in murder case‑Court's discretion to allow bail to accused below age of 16 years‑Held, attendant circumstances of crime cannot be lost sight of while exercising such discretion‑Allegations made by prosecution‑ showing that accused opened attack on deceased an elderly man and fired several revolver shots at him‑Order of High Court= granting bail to accused set aside and bail cancelled.‑[Age].

D. M. Arbey, Advocate and S. Inayat Hussain, Advocate‑on‑Record for Petitioner.

Kh. Sultan Ahmad, Advocate and Rana Maqbool Ahmad, Advocate‑on -Record for Respondent No. 1.

Abdullah Bajwa, Advocate and Ijaz Ali, Advocate‑on‑Record for the State.

Date of hearing : 27th January, 1976.

After hearing the learned counsel for the parties we have decided to convert this petition into an appeal, and we proceed to dispose it of accordingly.

The respondent Muhammad Rafique, who is facing prosecution under section 302/34, P. P. C. for the murder of one Ch. Farzand Ali, father‑in -law of the present petitioner, has beets allowed bail by a learned Judge of the Lahore High Court by his order dated 1‑7‑1975 on the ground that he was below sixteen years of age on the date of the occurrence. The petitioner seeks leave to appeal against this order.

It is contended that the learned Judge in the High Court was in error is placing reliance on the school leaving certificate produced by the respondent in support of his date of birth, as the respondent had joined the school only in 1974, and, therefore, the birth entry recorded there was not necessarily genuine: that on the contrary, the X‑ray and medical examination conducted by the Medical Superintendent of the District Headquarters Hospital, Dera Ghazi Khan, on 21‑6‑1975 showed that on that date the respondent was about 17 years of age; and that in any case the discretion allowed to the Court under the proviso to section 497, Cr. P. C. had to be exercised in the light of the attendant circumstances of the case, which showed that the respondent had played the leading role in launching the attack on the deceased. It is finally submitted that the case also stands committed to the Court of Session since 10‑1‑1976.

The petition is supported by Mr. Muhammad Abdullah Bajwa learned counsel appearing for the State.

On behalf of the respondent, Kh. Sultan Ahmad submits that the commitment of the case to the Court of Session is no longer a relevant circumstance in view of the promulgation of the Law Reforms Ordinance on 26‑12‑1975, which has abolished the commitment proceedings, and, therefore, the commitment order made by the learned Magistrate on 10‑1‑1976 should be discarded. He next submits that the High Court was justified in placing reliance on the date of birth appearing in the school leaving certificate, which shows that the respondent was born on the 30th of March 1960 and was accordingly a little over 15 years of age on the date of the occurrence, namely, the 19th of April 1975. Learned counsel finally submits that the petitioner appears to have acted under the influence of the older co‑accused Liaqat, as he did not have any motive of his own to assault the deceased. He contends that in these circumstances the order made by the High Court was perfectly legal and proper, and should not be interfered with by this Court.

After examining the circumstances of the case, we are of the view that this was not at all a fit case for the grant of bail. It is true that if an accused person is below the age of 16 years, the Court has a discretion to allow bail even in a case punishable with death or transportation for life, but while exercising this discretion, the attendant circumstances of the crime cannot be lost sight of. In the instant case we find that according to the allegation made by the prosecution it was the respondent who opened the attack of' the deceased who was an elderly man, and fired several shots at him from revolver. The circumstance that he might have acted under the influence of the older co‑accused Liaqat does not appear to have any bearing on the respondent's culpability. We would accordingly accept this appeal, set aside the order of the High Court, and cancel the bail granted to the respondent He shall be taken into custody and remanded to the judicial lock up for the, duration of .the trial.

Bail cancelled.

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