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Criminal Miscellaneous No. 2811/B of 1985 decided on 24th November 1985.

‑‑‑S. 497‑‑Penal Code (XLV of 1869), S. 302‑‑Bail‑‑Diyat‑‑Oniy father of deceased forgiving accused‑‑Held, before Diyat could be enforced, it was necessary to ascertain whether all heirs of deceased had forgiven accused or after receipt of some goods or money, had compromised matter‑‑Accused was, therefore, not entitled to be released on bail on ground of Diyat.‑‑[Diyat].

Muhammad Sadiq's case N L R 1985 Criminal 598; Muhammad Shafi Tahir's case 1978 P Cr. L J 177; Mahmood Elahi's case P L D 1981 (AJ&K) 99 and Eid Wali's case 1985 P Cr. L J 987 ref.

‑‑‑S. 497‑‑Penal Code (XLV of 1860), S. 302‑‑Bail‑‑Young age‑ Student‑‑Document showing age of accused 16/17 years‑‑Accused student of 1^st year‑‑Age, held, was good ground for bail even otherwise his studies would suffer if not released on bail‑‑Bail granted in circumstances‑‑[ Age].

Siraj Din's case 1970 S C M R 30 rel.

Ch. Muhammad Ilyas for Petitioner.

Hasnat Ahmad Khan for the State.

This is a petition under section 497/498. Cr.P.C by Muhammad Pervaiz Akhtar petitioner, for bail in respect of a case instituted against him under section 302, P.P. C. at Police Station Mughalpura. Lahore, on 4‑6‑1985.

2. The prosecution case in brief is that Muhammad Pervaiz, Akhtar petitioner, inflicted injuries with a Kulhari on Mst. Khalida Parveen, deceased, resulting in her death. The incident is alleged to have been witnessed by Jaffar Khan complainant, Muhammad Younis and Iqbal Masih.

3. On behalf of the petitioner it is submitted that Muhammad Yaqub, the real father of Mst. Khalida Parveen, deceased, has forgiven the petitioner. In this connection, the affidavit of the said Muhammad Yaqub has been filed with the bail petition as Annexure 'K'. The learned counsel for the petitioner relies upon Muhammad Sadiq's case N L R 1985 Criminal 598, Muhammad Shafi Tahir's case 1978 P Cr. L J 177 and Mahmood Elahi's case P L D 1981 (A J & K) 99. It is further submitted that Jaffar Khan, complainant, is a stock witness of the police, having given evidence in twenty‑two cases. In this connection, Annexures 'F'. 'F/2' and 'F/3', which are, three F.I.Rs., lodged at Police Station, Mughalpura, in which has been shown as a witness, are referred. It is next contended that Iqbal Masih P.W. had not seen the occurrence. In this connection, the affidavit of the said witness is referred which is Annexure 'C' to the petition. As regards Muhammad Younis P.W., it is submitted that he is also a stock witness of the police. It is submitted that the petitioner was sixteen/ seventeen years of age at the time of the offence and, being of immature age, is entitled to be released on bail. In this connection, it is further submitted that the petitioner is a student of the First Year Class of the Government College, Baghbanpura and if bail is not granted to him, his studies will suffer. The identity card of the petitioner issued by the Government College, Baghbanpura, Lahore, has been lodged with the petition as Annexure 'I'.

4. On behalf of the State, it is submitted that unless all the Sharie heirs of the deceased agree to forgive the accused or after receipt of some goods or money by mutual agreement strike a compromise, Diyat does not come into play and Qissas has to be enforced. In this connection, the learned counsel has cited Eid Wali's case 1985 P Cr. L J 987, a decision of the Supreme Court of Azad Jammu and Kashmir. It is further submitted that the character of the prosecution witnesses cannot be gone into at the stage of bail. It is lastly submitted that the petitioner should not be allowed bail on the basis of immaturity of age this matter should be left for decision by the trial Court.

5. I have heard the arguments of the learned counsel for the petitioner and the State and have also perused the record Before Diyat can be availed of, it is necessary to ascertain whether all the heirs of the deceased have forgiven the accused or all of them, after receipt of some goods or money by: mutual agreement, have compromised the mutter. In the instant case only Muhammad Yaqub, father of the deceased, appears to have forgiven the accused. The affidavits of the A other heirs have not been filed. In this view of the matter, relying upon the principle laid down by the Supreme Court of Azad Jammu and Kashmir in Eid Walt's case (Supra), I would hold that the petitioner is not entitled to be released on bail on the ground of Diyat. As regards the submission that Jaffar Khan and Muhammad Yaqub are stock witnesses of the police and should not be believed, this matter can also best be decided by the trial Judge after evidence is recorded. With regard to the last submission as regards age, the documents on the record prima facie show that the petitioner was between sixteen /seventeen years of B age at the time of the commission of the offence. Relying upon Siral Din's case 1970 S C M R. 30. 1 hold that this is a good ground for releasing the petitioner on bail, for, even otherwise he is a student of the First Year Class of the Government College, Baghbanpura, Lahore, and his studies will suffer if he is not released on bail.

6. For the foregoing reasons, this petition is accepted and the petitioner is released on bail, subject to his furnishing security in the sum of Rupees thirty thousand (Rs.30,000) with two sureties each in the like amount to the satisfaction of the Assistant Commissioner, Cantonment, Lahore.

S.A. Petition accepted.

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