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Criminal Miscellaneous Nos. 3035/13 and 3148/13 of 1986, decided on 18th December, 1986.

‑‑‑S. 497‑‑Penal Code (XLV of 1860). S. 302/148/149‑‑Bail, grant of‑ Petitioner ascribed specific role of opening attack on deceased while armed with Bughda and having caused first injury on his head‑‑Mere fact that Bughda not recovered from petitioner, held, would not entitle him to be released on bail‑‑Petitioner declined bail, in circumstance.‑ [Recovery].

‑‑‑S. 497‑‑Penal Code (XLV of 1860), S. 302/148/149‑‑Bail, grant of‑ Petitioner allegedly armed with a deadly weapon like Bughda, opening attack on deceased and causing him injury on the head‑‑Contention that petitioner being a young lad of 15 years at time of occurrence, his case was covered by first proviso to S. 497 of Cr.P.C. entitling him to be released on bail, repelled‑‑Petitioner, held, was not entitled to exercise of discretion in his favour, in circumstances and bail was declined.

‑‑‑S. 497‑‑Suppression of Terrorist Activities (Special Courts) Act (XV of 1975), S. 4 read with Sched.‑‑Penal Code (XLV of 1860), S. 302/148/ 149‑‑Bail‑‑Jurisdiction of High Court‑‑ Contention that a notification already having been issued by Chief Minister, directing trial of case registered under 5.302/148/149, P.P.C. by Special Tribunal, therefore, bail application of petitioner was not competent before the High Court, misconceived‑‑Offences under S.302/148/149, P.P.C. not being scheduled offences for purpose of Terrorist Activities Act, 1975, and as such not being triable by a Special Court, Chief Minister, held, was not legally empowered to direct entrustment of such case to a Special Court‑‑Order of Chief Minister, was a nullity in eye of law and of no legal effect.

R.A. Awan for Petitioners.

Zafar Yasin for the State.

Shakir Rizvi assisted by Rashid Ahmad for the Complainant.

Date of hearing: 19th November, 1986.

This order shall dispose of two bail petitions viz. Criminal Miscellaneous Nos. 3035/13 of 1986 and 3148/13/86. filed, respectively, by Zahid Hussain and Khalid Mahmood, who were involved alongwith others in a case under section 302/148/149, P.P.C. arising out of F.I.R. No.334, dated 11‑8‑1986, registered at Police Station North Cantt. Lahore, regarding the murder of one Muhammad Azam, Vice‑President of Muslim League for Lahore Cantonment.

2. It has been alleged in the F.I.R. that the deceased opened an office of Muslim League on Sagar Road in a room located on the ground‑floor of his house. Muhammad Ashraf and others resented it and wanted that the office be closed.

A few days prior to the occurrence, Muhammad Ashraf accompanied by Ferooq‑ur‑Rehman alias Nooni came to the office of Muhammad Azam and asked him to close his office. They also held out threats of dire consequences to him in case he failed to close the office.

On the days of occurrence at about 5‑30 p. m. Farooq‑ur‑Rehman etc. came to the office of Muhammad Azam and again asked him to close the office. While leaving they told him that they would be returning soon. Muhammad Azam submitted a written application complaining against the conduct of Farooqi-ur-Rehman etc. at the Police Station. At about Maghrib time, Khalid Mahmood armed with carbine, Frooq‑ur‑Rehman armed with Chhuri, Zahid Hussain alias Munna armed with Bughda, Nazir armed with Chhuri, Arif armed with carbine and Musa armed with Chhuri came to the office of Muhammad Azam deceased. Khalid and Arif fired shots with their respective carbines to terrorize the people. In the meantime Zahid caused a blow with Bughda on the head of Muhammad Azam. After receiving injury he fell down. While in fallen condition, Farooq‑ur‑Rehman, Nazir and Musa caused injuries with their respective Chhuris on different parts of the body of the deceased. Throughout the occurrence, Ashraf had been raising Lalkaras that Azam should be taught a lesson for opening the office and that he should be finished.

3. Adverting to the case of Zahid Hussain petitioner Criminal Miscellaneous No. 3035/B of 1986, the precise allegations against him are that at the time of occurrence he was armed with Bughda. He opened the attack on Muhammad Azam and caused injury to the deceased on his head. After receiving that injury he fell down.

4. It has been contented on behalf of Zahid Hussain that local M.P.A., local Councillor and many other respectable persons of the locality appeared before the Investigating Officer to vouch safe the innocence of Zahid petitioner. The case has been re‑investigated even by the D. S. P. before whom also the said respectables appeared and disclosed about the innocence of the petitioner. It has also been urged that no Bughda has been recovered from the petitioner, although he remained in the custody of the police for a fortnight. It has also been maintained that at the time of the alleged commission of c4z ime, Zahid petitioner was less than fifteen years of age and, therefore, on this short ground he was entitled to be released on bail. Regarding the alleged innocence of Zahid Hussain, reference has been made to report submitted by the police in this case under section 173, Cr.P.C.

5. It transpires from the contents of the report that many people, including the local M.P.A. and local Councillor, appeared before the Investigating Officers and stated about the innocence of the petitioner and that of his father, but at the same time, the prosecution witnesses fully supported the prosecution version against the petitioner and his father. The local police and the D.S.P came to the conclusion that defence of the petitioner and his father was based on hearsay evidence and that there was no positive proof about their innocence. It has also been found that evidence led in defence was weaker than the prosecution evidence. Consequently alongwith other co‑accused, the petitioner and his father have also been challaned.

On the basis of report submitted under section 173, Cr.P. C. it cannot be said that the investigating Officers/agency have recorded a positive finding about the innocence of the petitioner so that it can be said that his case is that of further inquiry. The ipse dixit of the police that local M.P. A. , local Councillor and many respectable persons of the locality have stated about the innocence of the petitioner anti his father, but their evidence was weaker than the evidence of the prosecution whereby they were alleged to be guilty of the offences in , the circumstances of this case is of no help to the petitioner to advance the plea that this case was that of further inquiry. In the F.I. R he has been ascribed a specific role of opening the attack on the deceased while armed with Bughda and having caused the first injury to the deceased on the vital part of his body Le head. The mere fact that Bughda could not be recovered from he petitioner does not entitle him to be released on bail.

6. Regarding the tender age of the petitioner, it may be observed that of course according to the school leaving certificate enclosed with the under consideration bail application, the petitioner was less than 15 years of age at the time of occurrence. By virtue of first proviso to section 479 (I), Cr.P.C. the Court may release a person under the age of 16 years on bail, even if he is involved in an offence falling within the prohibitory clause. This discretion, of course, has to be exercised judicially keeping in view the facts and circumstances of each individual case. In the present case, as already observed, the petitioner was allegedly armed with a deadly weapon like Bughda. He opened the attack on the deceased and caused him first injury on the vital part of his body. He is, therefore, not entitled to the exercise of discretion in his favour.

7. It is noteworthy that in this case, an objection was raised on behalf of the complainant that the Chief Minister has been pleased to order that this case be tried by a Special Tribunal and, therefore, bail application of the petitioner was not competent before this Court. A notification published by the Government of Punjab, Home Department, dated 28th October, 1986, has been produced. The contents of the notification reveal that in addition to the Special Court functioning at Lahore, under the Suppression of Terrorist Activities (Special Courts) Act, 1975, two additional Courts have been constituted with immediate effect. By virtue of section 4 of the Suppression of Terrorist Activities (Special Courts) Act, 1975, scheduled offences are exclusively triable by a special Court. Offences punishable under section 302/149/148, P.P.C., do not figure in the schedule to the aforementioned Act. Such offences are, therefore, not scheduled offences for the purpose of said Act and are thus not triable by a Special Court. The Chief Minister, though a Chief Executive of the Province, is not legally empowered to order the entrustment of a non‑scheduled offence to a special Court. He alone is not the Provincial Legislature and has no power/ jurisdiction to pass an order in violation of the Suppression of Terrorist Activities (Special Courts) Act, 1975. His order whereby he has directed that this case be sent to the special Court/Tribunal for trial, is, therefore, a nullity in the eye of law and has no legal effect. This case is triable by the ordinary Court of Session having jurisdiction in the area.

8. So far as the merits of this application are concerned, the same have already been dealt with and it has been found that there is no valid ground to admit the petitioner to bail, who is involved in an offence falling within prohibitory clause. His application for bail is, therefore, dismissed.

9. Regarding the case of Khalid Mahmood petitioner, it may be observed that he in the first instance applied for being released on bail before a learned Additional Sessions Judge, Lahore, who vide his order, dated 4‑11‑1986, observed that since the Chief Minister has already passed orders of entrustment of the case to a Special Tribunal, therefore, he was not possessed of jurisdiction to hear the bail application of the petitioner. Consequently without considering the merits of the application dismissed the same.

As already observed, the offences with which the petitioner is charged are not scheduled offences within the meaning of section 4 of the Suppression of Terrorist Activities (Special Courts) Act. 1975 and, therefore, the case cannot be entrusted for trial to a Special Court and the order passed in this behalf by the Chief Minister is a nullity in the eye of law. In this view of the matter, the petitioner is advised to have recourse again to the learned Court of Sessions, for his bail, who shall decide the same on merits.

S. G. D./Z‑6/L Order accordingly.

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