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Criminal Bail Application No. 52 of 1987, decided on 28th January, 1987.

‑‑S. 497‑‑Penal Code (XLV of 1860), S. 302/34‑‑Bail‑‑Age‑ Ossification test‑‑Age of accused 16 years by birth certificate and 17 years as per opinion of Police Surgeon‑‑Exact date of birth, held, could never, be determined on basis of ossification test and there was always a margin of a year or so in so far as ossification test was concerned.‑‑[Age].

---S. 497‑‑Penal Code (XLV of 1860), S. 302/34‑‑Bail‑‑Accused sixteen years old according to birth certificate and seventeen years as per opinion of Police Surgeon‑‑Fatal blow not caused by accused and there was no recovery‑‑Cumulative effect of such factors making out a case for bail‑ Bail granted to accused in circumstances.

Rustom J.E. Kaikobad for Applicant.

Rashid Tariq for the State.

Applicant Muhammad Rafiq alongwith three co‑accused, his brothers namely Karimullah, Muhammad Qasim and Hashmatullah are charged with an offence under section 302/34, P.P.C. The incident is alleged to have taken place on 9‑10‑1986 at l 1‑00 a.m. and the F.I.R. was lodged at 12‑00 noon at P.S. Baghdadi Karachi. According to the prosecution, two of the accused, namely, Muhammad Qasim and Hashmatullah, had caught hold of the deceased Abdullah and applicant Muhammad Rafiq caused Danda blows on the person of the deceased, whereas Karimullah inflicted the fatal knife injury. It is also the case of the prosecution that the three co‑accused had been arrested on the day of the incident but applicant Muhammad Rafiq had absconded and later on he was arrested after his application for grant of pre‑arrest bail was rejected by the learned Sessions Judge, South Karachi on 18‑1‑1987. I have heard Mr. Rustom J.E. Kaikobad. learned counsel for the applicant and Mr. Rashid Tariq, learned counsel for the State.

2. In support of the present bail application, the following contentions are raised by the learned counsel for the applicant:‑

(a) The applicant was below the age of 16 years at the time of the incident and as such he is to be tried separately under the Sind Children Act, 1955 and he is entitled to the concession under the first proviso to section 497(1), Cr.P.C. In support of this contention, the learned counsel has relied upon a certificate about an entry in Register of Births and Deaths maintained by the K.M.C., which shows that the applicant was below 16 years of age at the time of the incident. The applicant had been examined by the Police Surgeon and according to the Police Surgeon the age of the applicant is about 17 years. Apparently the Civil Surgeon had given his opinion on the basis of ossification test. According to the learned counsel for the applicant the margin of one year is always there in the case of ossification test in so far as the age is concerned.

(b) The medical certificate refers to some contusions on the body of the deceased but the medical officer has not mentioned in the report that the contusions were caused by a Danda or by a blunt instrument.

(c) According to the prosecution, the fatal blow was caused by co -accused Karimullah and not by the applicant.

(d) There has been a recovery of Chhuri from accused Karimullah but there has been no recovery of the Danda from the applicant.

The bail application is opposed on behalf of the State by Mr. Rashid Tariq. In so far as the age factor is concerned, according to the learned counsel for the State, the opinion of the Police Surgeon based on the ossification test is prima facie more reliable than the certificate of K.M.C. about the entry of birth in the Register of Births and Deaths. According to the learned counsel for the State, if the applicant is challenging the opinion of the Police Surgeon, he can make a request for constitution of a larger Medical Board to determine the age of the applicant. In so far as the medical certificate is concerned, according to the learned counsel for the State, the contusions shown in the medical report are apparently caused by a blunt instrument. As regards the fatal blow, learned counsel for the State admits that according to the prosecution case, the fatal blow was caused by co‑accused Karimullah but according to him the common intention of the four brothers is apparent from the prosecution case. According to the learned counsel for the State, it is a case of premeditated murder on the part of the four brothers including the applicant. As regards the recovery, it was submitted that the applicant had absconded and after such a long time it is obvious that the recovery of the Danda would not be possible and no adverse inference can be drawn in so far as the prosecution case is concerned on the ground of non‑recovery of the Danda. Additionally it was submitted by the learned counsel for the State that the applicant had absconded and this factor shows his prima facie guilt.

In so far as the age factor is concerned, the certificate of the K.M.C. showing the entry regarding the birth of the applicant, is in favour of the applicant and shows that he was below the age of 16 years at the time the incident had taken place. No doubt, the opinion of the Police Surgeon is that the applicant is about 17 years of age, but then there is always some margin of error and on the basis of the ossification test the exact age can never be determined. There is always a margin of about one year or so in so far as the ossification test is concerned. For the purposes of the bail on account of the opinion of the Police Surgeon and the certificate of the K.M.C. on the basis of the entry in the Register of Births and Deaths, in my view, the benefit, at this stage of bail, should go to the applicant. It is however, not necessary that in such case bail should always be granted to the applicant but there are some additional factors also and these are that the fatal blow was not caused by the applicant and there has been no recurrence. The aforesaid three factors individually may not make out a case for grant of bail, but in my view, the cumulative effect of the three factors is that a case for bail has been made out by the applicant.

Criminal Bail Application No.52 of 1987 is granted and it is directed that the applicant Muhammad Rafiq son of Haji Muhammad be released on bail on his furnishing one surety m the sum of Rs.50,000 with P.R. bond in the like amount to the satisfaction of the trial Court.

M.Y.H./M‑45/K Bail granted.

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