SOHAIL AHMED S/O ATTA (Applicant) VS THE STATE (Respondent)

ORDER SHEET

IN THE HIGH COURT OF SINDH, KARACHI

Criminal Bail Application No.2265 of 2021

Date Order with signature of Judge

For hearing of bail application.

28th February 2022

Mr. Muhammad Iqbal Balouch advocate for the applicant/accused. Mr. Talib Ali Memon Asst.P.G alongwith ASI Saleem Akhtar CRO Branch.

Salahuddin Panhwar, J. Briefly, according to the crime report on 12.08.2020 at 1000 hours, the complainant along with his family members was present at his house when three accused persons duly armed with pistol entered into the house of the complainant and on the force of weapon looted golden ornaments and cash Rs.4500/- and tried to flee away. However, on the commotions of complainant, other neighbourers gathered and succeeded in apprehending one accused person, whereas his two accomplices along with looted ornaments and cash fled away from the place of incident. On enquiry apprehended accused disclosed his name as Sohail Ahmed and disclosed the names of his accomplices as Sattar and Afzal. Hence FIR No. 1400/2021 under Section 392/397/34 PPC was registered on the same day at 1115 hours.

2.Learned counsel for the applicant mainly contends that the applicant has been implicated in this case falsely; that nothing was recovered from the possession of the applicant; that no specific role has been assigned to the applicant in the FIR; that at the time of arrest the applicant was less than 18 years of age. He, therefore, prays that the applicant may be granted bail.

3.Conversely, learned Assistant Prosecutor General, Sindh has opposed the grant of bail to the applicant, while contending that the applicant was apprehended at the spot; that no enmity of the complainant against the applicant is alleged; that the offence with which the applicant is

charged falls within the prohibitory clause of section 497, Cr.P.C. He, therefore, prays that the bail application may be dismissed.

4.Heard and perused the record.

5.Perusal of record reveals that the name of the applicant finds place in the FIR; the applicant along with his two accomplices duly armed entered into the house of the complainant and looted golden ornaments and cash on gun point; while fleeing away from the spot, on the hue of cry Mohalla people gathered, who apprehended the applicant while others made their escape good; the prosecution witnesses in their statements under section 161, Cr.P.C. have implicated the applicant; no enmity of the applicant with the complainant is shown; thus there is sufficient material available against the applicant to connect him with the offence alleged against him, which disentitles him to the grant of bail. In any event at bail stage only tentative assessment is to be undertaken and no deeper appreciation is permissible under the law.

6.With regard to the contention of learned counsel for the applicant that applicant is juvenile accused as he was below the age of 18 years, section 8 of the Juvenile Justice System Act, 2018 stipulates that if an accused physically appears or claims to be a juvenile, the Police shall make an inquiry to determine the age of the accused on the basis of his birth certificate, educational certificate or any other pertinent document. In the absence of such documents, age of such accused person may be determined on the basis of a medical examination report by a medical officer. Section 8(2) provides that if the accused physically appears to be a juvenile when brought before a court (of general criminal jurisdiction) under section 167 Cr.P.C, the court shall before granting further detention record its finding regarding age of the accused. Therefore, in the absence of any inquiry by the Police the determination of age and juvenility of the accused can be determined by the court having taken cognizance of the matter. However, in the present case record reflects that the applicant had not claimed regarding his juvenility before the police, hence the applicant may claim declaration of his juvenility before the trial court, who may entertain his claim on the basis of available record or medical examination report by a

medical officer and unless a finding with regard to juvenility of the applicant is recorded by the trial court, the applicant cannot claim bail being juvenile at this stage.

7.For the above stated reasons, I am of the view that the applicant is not entitled for bail, hence present bail application merits no consideration and is hereby dismissed. However, learned trial court shall conclude the trial preferably within two months from the date of this order.

8.Needless to mention here that the observations made hereinabove are tentative in nature and the same shall not influence the learned trial Court while deciding the case on merits.

JUDGE

Sajid