Shayan vs Mst. Zahida Nageen

2013 Y L R 1172

[Peshawar]

Before Roohul-Amin Khan, J

SHAYAN---Petitioner

Versus

Mst. ZAHIDA NAGEEN and another---Respondents

Criminal Miscellaneous No.80-P of 2013, decided on 19th February, 2013.

(a)Criminal Procedure Code (V of 1898)---

----S. 497---Penal Code (XLV of 1860), Ss.324 & 325---Pakistan Arms Ordinance (XX of 1965), S.13---Attempt to commit qatl-e-amd and suicide, possessing unlicensed arms---Bail, refusal of-- -Accused, a minor---Matter had promptly been reported by the complainant---Two independent witnesses, had fully supported the prosecution case---Weapon of offence i.e. 30 bore pistol, along with fixed charger having three live rounds, and two empties from the spot, coupled with injuries on the vital part of the victim and accused, were sufficient to prima facie connect accused with the commission of offence---Mere fact that accused was minor, would not ipso facto, entitle accused to the concession of bail---Accused had attempted at the life of a student of 8th class, causing her firearm injury on her chest---Life destroying act of accused; loading of an automatic weapon; boldly firing at the victim; and then self annihilation and suicidal attempt, were sufficient to indicate the maturity of mind of accused at the time of commission of offence- --Gravity of act, must receive corresponding consideration in dealing with the bail matter as well---Accused was prima facie, connected with the commission of offence; and at bail stage, deep appraisal of evidence, was not desirable particularly in the case, where challan had already been put in court; and the trial was likely to commence in the near future---Any expression of opinion on merits of the case, was likely to prejudice the mind of the Trial Court during trial---Discretion could not be exercised in favour of accused---Bail application of accused having no merits, was dismissed, in circumstances.

(b)Criminal Procedure Code (V of 1898)---

----S. 497---Bail---Minority of accused, per se would not be considered a valid ground for release of accused on bail as of right---Legislature while inserting Proviso-I of S.497, Cr.P.C., had very wisely used the word "may" instead of "shall", and the discretion had been left with the court to consider every case on its own merit---Court could not be swayed away by plea of minority alone.

Jalalhuddin Muhammad Akbar for Petitioner.

Sahibzada Assadullah for Respondent.

M. Abid Wazir for the State.

Date of hearing: 19th February, 2013.

JUDGMENT

ROOHUL-AMIN KHAN, J.---Petitioner Shayan, aged about 16 years, student of 10th Class, Fauji Foundation Model School, Swabi is involved in case F.I.R. No.1422, dated 22-11- 2012 of Police Station Swabi, registered under sections 324/325, P.P.C. r/w 13 Arms Ordinance for attempt to commit murder of Miss Warda Khan, student of 8th Class, studying in the same school. He applied for bail to the learned Additional Sessions Judge-III, Swabi, but his request for bail was turned down, therefore, he has moved the instant petition for his release on bail till final disposal of the case.

2.Learned counsel for the petitioner contended that the petitioner has been falsely implicated in the present case and that the story given by the prosecution in respect of arrest of petitioner from the spot appears to be unbelievable and that neither the weapon of offence has been sent to Fire Arms Experts nor any report has been obtained from expert in this connection and that the ocular account is contradicted by the Medico-legal Report, therefore, there is scope for further inquiry into the guilt of petitioner. Further submitted that the petitioner is minor and his age is about 16 years, therefore, the case of the petitioner does not fall within the prohibitory limb of section 497, Cr.P.C, therefore, the petitioner is entitled to the concession of bail.

3.Learned State counsel, assisted by Private counsel for complainant opposed the bail petition mainly on the ground that petitioner was not only directly charged in the F.I.R., but he was also caught red-handed alongwith weapon of offence and challan in the present case has already been put in Court, therefore, he is not entitled to the concession of bail.

4.Admittedly, the occurrence has taken place during break time in the play ground of Fauji Foundation School, Swabi. The matter has promptly been reported by the complainant Mst. Zahida Nageen, mother of the injured student Miss Warda Khan. Two independent witnesses namely Mst. Nargis and Haji Aawab Ali, Chowkidar fully supported the prosecution case. The weapon of offence i.e. .30 bore pistol bearing No.4223 along with fixed charger having three live rounds of .30 bore and two empties of even bore from the spot coupled with injuries on the vital part of victim and petitioner are sufficient to prima facie connect the petitioner with the commission of offence.

5.The mere fact that the petitioner is minor, will not ipso facto, entitle him to the

concession of bail and even minority will not confer a license to a person to attempt at the life of others. The petitioner has attempted at the life of a student of 8th class, causing her firearm injury on her chest. The life destroying act of petitioner; loading of an automatic weapon i.e. .30 bore pistol; boldly firing at the victim and then self-annihilation and suicidal attempt are sufficient to indicate the maturity of mind of petitioner at the time of commission of offence, therefore, the gravity of the act, must for the reason, receive corresponding consideration in dealing with the bail matter as well. For this reason, minority per se would not be considered a valid ground for release of accused on bail as of right. It is, therefore, the legislature while inserting Proviso 1 section 497, Cr.P.C. has very wisely used the word "may" instead of "shall" and the discretion has been left with the Court to consider every case on its own merit. Every case is to be examined on its own merit and the Court cannot be swayed away by plea of minority alone.

6.Unfortunately, a student of mid-teens age has so boldly committed a heinous offence, in presence of students of primary classes, only for the reason that a student of eighth class was not agreeing to talk to him. In my view students are expected to adhere to and practice the code of ethics on a School and College level. Schools and Colleges are cradle and valuable institutions that help build upon the nation's foundation and serve as an arena where the growth and stability of future generation begin. Crime in Schools and Colleges are, therefore, one of the most troublesome social problem and dilemma, for which parents, teachers and school administration are equally responsible. Not only does it affect those involved in the criminal incident, but it also hinders the society's growth and ability, as these children are the future of the country and they should be motivated to contribute positively to the society and become a valuable asset to the country. If proper measures are not taken to curb juvenile students criminal activity, due to already dooming economy, it would be a strong threat to social prosperity. The commission of a crime by a student of school in such a fashion and bold manner is not gross rooted and penetrated in the society due to poverty and survival, but are a result of social disorder which prevails in all spheres of our life. It is a social dilemma of our society, where we are unable from our community or higher morals and acceptability of others rights.

7.As the petitioner is, prima facie, connected with the commission of offence and at bail stage, deep appraisal of evidence is not desirable particularly in the present case where challan has already been put in Court and the trial is likely to commence in the near future and any expression of opinion on merits of the case is likely to prejudice the mind of learned trial Court during trial.

8.In view of the above discussion, I am not inclined to exercise discretion in favour of the petitioner, resultantly, the present bail application having no merit is dismissed, however, the learned trial Court is directed to conclude the trial within two months positively.

9.Before parting with this order, it is pertinent to mention here that the observation made hereinabove are tentative in nature and shall have no bearing on the merit of the case.

HBT/90/P Bail refused.