Order Sheet.
HIGH COURT OF SINDH, CIRCUIRT COURT HYDERABAD.
CR. BAIL A. NO.S-05 OF 2010.
Ghulam Rasool. . . . . .Versus. . . . .The State.
Date Order with signature of Judge
Date of hearing: 08.03.2010.
Date of order: 19.03.2010.
FOR HEARING.
Mr. Ahsan Gul Dahri, Advocate for the applicant.
Mr. Shahid Ahmed Shaikh, Assistant Prosecutor General, Sindh.
. . . .
MUHAMMAD ALI MAZHAR,J.- Through this criminal bail application, applicant Ghulam Rasool S/o Mehar has applied for bail in Crime No.168 of 2008, registered under sections 302 and 34 P.P.C.
2. Bail plea of the applicant was declined by the learned IIIrd Additional Sessions Judge, Dadu vide order dated 28.4.2009 in Sessions Case No.135 of 2008.
3. Facts of the prosecution case as disclosed in the F.I.R. lodged by complainant Ahsanul Haq on 31.3.2008, are that few days back an altercation between the brother of the complainant and accused Hussain Bux was took place over the game of Volleyball. It is stated in the F.I.R. that on 29.3.2008, at night time, complainant alongwith his brother zafarul Haq and labourer M. Mithal was sleeping at his poultry form. At about 2.00 a.m, there were hakals and complainant woke up and saw, in the light of bulb, accused Hussain Bux and Ghulam Rasool (applicant) duly armed with dandas alongwith one unknown person, who was armed with pistol. Thereafter, the accused Ghulam Rasool caught hold complainant's brother Zafarul Haq from his legs and accused Hussain Bux caused danda blow on his head. On receiving the danda blow injury, Zafarul Haq went unconscious. In the meantime, Rizwanul Haq also came and witnessed the incident. Thereafter the accused went away. Due to aforesaid injury Zafarul Haq died at the spot. F.I.R. was registered and after arresting the accused and completing the investigation police challaned the case in the concerned Court.
4. The learned counsel for the applicant argued that F.I.R. was lodged with inordinate delay of 44 hours though the place of incident is at a distance of hardly half kilometer from the police station. He also pointed out from the contents of F.I.R. that deceased received the injury on his head from Danda which was hit by co-accused Hussain Bux and not by the applicant. He also referred to Investigating Officer's diary dated 4.4.2008, in which the Investigating Officer himself stated that the deceased was a "Phadaee" (quarrelsome person) who used to fight with everyone over minor issues and third party might have committed his murder by taking advantage and the present accused of the F.I.R. would not have committed the murder of the deceased. The observation of I.O. makes the case fit for further inquiry. He further argued that at the time of commission of offence, the applicant did not attain the age of 18 years and according to school leaving certificate of the applicant issued by Headmaster, Government Primary School Wazirabad, the date of birth of the applicant/accused is 4.3.1995 and thus his age at the time of incident was just 13 years and 26 days. His case falls within the purview of Juvenile Justice System Ordinance 2000 (hereinafter referred to as "the Ordinance 2000"). He further contended that while deciding the bail application, the learned trial Court has relied upon a letter issued by Civil Surgeon, Dadu, and considered the age of the applicant as 20 years, which is a wrong opinion and was managed by the police on the influence of complainant party. No medical board was constituted by the trial Court to determine the actual age of the applicant. He also argued that the applicant is behind the bar for last one year and nine months in District Jail Dadu and he has been confined with adults and dangerous prisoners due to which his life and character both are under great threat. The applicant was a regular student of class-VII at the time of his arrest and being remained in jail, his two precious years of career have already lost. He further argued that the prosecution witnesses are paid servants of the complainant and inimical and hostile towards the applicant. The applicant/accused has been charged with facilitating the alleged murder of deceased and in the F.I.R. itself, it is mentioned that the applicant Ghulam Rasool caught hold to the deceased Zafarul Haq from his legs who was sleeping on the cot and the accused Hussain Bux caused Danda blows on his head with the intention of murder. In support of his contention, learned counsel for the applicant relied upon a judgment reported in 1978 SCMR 353, in which the Honourable Supreme Court declined the cancellation of bail granted by the Lahore High Court to the applicant and held that respondent alleged to have held deceased when his son hit deceased on head, the respondent accordingly charged with facilitating murder of deceased, therefore, the High Court rightly pointed out the case to be one requiring further inquiry. Consequently, the petition for the cancellation of bail was dismissed. Besides above, he also relied upon another judgment reported in 2010 M L D 185, in which bail was allowed to the accused being a case of further inquiry. In this case accused were named in the F.I.R. and joint role of catching hold was assigned to accused whereas co-accused had been saddled with the responsibility of proverbial "lalkara", no injury upon the bodies of the deceased persons had been attributed to accused persons, therefore, it was held that question of vicarious liability could only be resolved at trial after recording evidence, which made the case of accused persons one of further inquiry within the ambit of sub-section (2) of section 497 Cr.P.C. With these observations the learned single Judge of Lahore High Court granted bail to the accused. So far as the age of the applicant is concerned, the learned counsel for the applicant relied upon section (7) of the Ordinance 2000, which provides that if a question arises as to whether a person before it is a child, for the purposes of this ordinance the Juvenile Court shall record a finding after such inquiry which shall include a medical report for determination of the age of the child. According to him instead of conducting an impartial inquiry by the Court by constituting a proper medical board for ossification test, the trial Court has simply relied upon a letter of Civil Surgeon Dadu, who allegedly opined the age of applicant 20 years. The procedure for determining the age of accused under section (7) of the Ordinance 2000 has been considered in a judgment of Lahore High Court reported in 2005 M L D 1487. In this case the medical board was not constituted properly and the age was determined on the basis of report of three Radiologist, therefore, the report was not accepted and directions were issued to the Medical Superintendent Services Hospital to constitute a Board consisting of Medical Superintendent, Senior Radiologist, Dental Surgeon, Orthopedic Surgeon and the Professor of Medicines, so that the actual age of the accused may come on record. This procedure and practice was directed to be adopted in all such-like cases in future. Alongwith the bail application, the applicant has also filed School Leaving Certificate of Government Primary School, Wazirabad, which shows the date of birth of the applicant as 4.3.1995, so also computerized "B" form issued by National Database and Registration Authority is showing the same date of birth. In this regard the learned counsel for the applicant relied upon a judgment reported in 2008 P Cr. L J 715, in which bail was granted on the basis of School Leaving Certificate as well as Matriculation Certificate issued by the Board of Intermediate & Secondary Education, showing that at the time of incident the accused was 16 years old.
5. In response to the arguments advanced by learned counsel for the applicant, the learned A.P.G argued that no application for ossification test was moved by the applicant before the trial Court, which, according to him was mandatory. He insisted that this Court may direct the trial Court for the constitution of Medical Board in order to determine the age of accused at the time of incident.
6. Heard the learned counsel for the applicant, learned A.P.G for the State and perused the papers. It is clear from the contents of F.I.R. that the allegations against the present applicant is only catching hold the deceased and another accused Hussain Bux caused Danda blows on the head of deceased, therefore, there is no direct allegation against the applicant of committing murder of the deceased. Secondly, the applicability of the Ordinance 2000 is also to be seen keeping in view the exact age of the accused, which has not been properly determined by the trial Court, being its own responsibility, notwithstanding the fact that no application was filed, by the accused. This point was specifically raised in paragraph-10 of bail application but instead of constituting the medical board to fulfill the mandatory requirement of section (7) of the Ordinance 2000, the trial Court simply relied upon a certificate of Civil Surgeon, which was an improper approach. The purpose of the Ordinance 2000 is to provide protection to children in criminal litigation, their rehabilitation in society, reorganization of Juvenile Courts and matters connected therewith. The applicant's counsel has also pointed that the applicant has been confined in district jail with adult and dangerous prisoners, which is totally against the spirit of the Ordinance 2000. Under the Juvenile Justice Rules 2001, it is necessary for the provincial government to establish and maintain borstal institution to keep and accommodate the juvenile with all arrangements to impart education and training for their mental, physical, moral and psychological development within the borstal institution. Similarly, under the Sindh Juvenile Justice Rules 2002, it is mandatory that Government should establish and maintain at least one borstal institution in every district with necessary arrangements for providing education and training to the inmates for their mental, moral and psychological development in every institution, so in order to properly implement the Juvenile Justice System Ordinance, 2000 and the Rules made thereunder, it is obligatory for all Courts of law to ensure the proper process for the determination of age, which is most crucial point before commencement of trial and this can only be done after constitution of a medical board for the purposes of ossification test, comprising Medical Superintendent Services Hospital, Senior Radiologist, Dental Surgeon, Orthopedic Surgeon and a Professor of Medicines and if the age of juvenile will be determined in a cursory and slipshod manner then the whole purpose of Juvenile Justice System 2000 will become redundant and futile. A cursory glance over the Juvenile Justice System Ordinance, 2000, shows that a child means a person who at the time of commission of an offence has not attained the age of 18 years. Under this law Juvenile Courts have been specially set up with exclusive jurisdiction to try cases in which a child is accused of commission of any offence. Section 7 of the Ordinance is relevant to the point under discussion because it states that if a question arises as to whether the person before it is a child for the purposes of the Ordinance, the Juvenile Courts shall record a finding after inquiry which shall include a medical report for the determination of age of the child. This law contemplates certain privileges and rights for a juvenile under trial and special Courts have been created with the sole object of trying juveniles. It is clear that moving of an application by a juvenile under trial is not a condition precedent for conferring jurisdiction upon the Court to take cognizance of the element of age under this law. As and when the Court is informed that the accused is or was a child at the time of commission of the offence, the trial Court is bound to adopt the procedure prescribed under the Juvenile Justice System Ordinance. The Juvenile Justice System Ordinance is a special law and it takes precedent over the general law. It does not give any discretion to a trial Court to ignore mandatory provisions. Since in the present case not only the age of the accused/applicant is to be determined properly but the allegation against the applicant is only catching hold to the deceased from his legs, therefore, in my view, this is a matter of further inquiry. The trial Court on the basis of Civil Surgeon's letter determined the age of the applicant as 20 years while the School Leaving Certificate and "B” Form are showing the date of birth of the applicant as 4.3.1995. According to the applicant his age was thirteen years and twenty six days at the time of incident, which took place on 30.3.2008. All these questions are opened to further inquiry, therefore, the applicant is granted bail subject to furnishing solvent surety in the sum of Rs.100,000/- (One Lac) and P.R Bond in the like amount to the satisfaction of the trial Court.
7. The learned trial Court is directed to refer to the matter immediately to Medical Superintendent, Services Hospital for constituting a medical board comprising Medical Superintendent himself, Radiologist, Dental Surgeon, Orthopedic Surgeon and Professor of Medicine with the direction to examine the applicant, determine his age and submit their report within two weeks. After submission of the report, the learned trial Court shall record its finding for determination of the age of the applicant and then proceed in accordance with law.
Bail application disposed of.
JUDGE