PLJ 2023 SC (Cr.C.) 70
Criminal Procedure Code, 1898 (V of 1898)--
----S. 497--Juvenile Justice System Act, (XXII of 2018), S. 6--Post arrest bail--grant of--The petitioner was exactly sixteen years of age on the date the offence was committed--Therefore, the applicable provision of the Act would be its sub-section (3) which provides that the petitioner has to be considered as if ‘he was accused of commission of a bailable offence’ if the offence is one as defined as ‘minor or major offence’ in the Act, which are respectively offences for which a maximum of three and seven years imprisonment is provided--The date of arrest in a criminal case is immaterial; an accused has to be dealt with under the law as applicable on the date that the crime is committed--Petitioner is admitted to bail.
[P. 72] A & B
Interpretation of Statute--
----Provisions of law--If there are two possible interpretations of a provision of the law the one favourable to the accused is applicable.
[P. 73] C
Mr. Zia-ur-Rehman Tajik, ASC and Syed Rifaqat Hussain Shah, AOR for Petitioner.
Mr. Shumail Aziz, Additional A.G. Khyber Pakhtunkhwa ASI for Respondent No. 1.
Mr. Shahidullah, Advocate (with permission of the Court) along with Shahid Khan, Complainant for Respondent No. 2.
Date of hearing: 28.6.2021.
PLJ 2023 SC (Cr.C.) 70
[Appellate Jurisdiction]
Present: Qazi Faez Isa and Yahya Afridi, JJ.
SAHIB ULLAH--Petitioner
versus
STATE through A.G. Khyber Pakhtunkhwa and another--Respondents
Crl. P. No. 546 of 2021, decided on 28.6.2021.
(Against the judgment dated 30.04.2021 of the Peshawar High Court, Mingora Bench (Dar-ul-Qaza), Swat passed in Criminal Misc.
(B.A.) No. 260-M of 2021)
Order
Qazi Faez Isa, J.--Notice was issued to the complainant and he is in attendance and states that Mr. Shahidullah, Advocate had represented him but he is not an advocate of this Court and requests that he may be permitted to argue his case before this Court as he does not have the resources to engage another counsel. Therefore, we permitted Mr. Shahidullah, Advocate to represent the complainant and to make submissions on his behalf.
2. The learned counsel for the petitioner states that the petitioner was not nominated in the FIR; that statement recorded under section 164 of the Code of Criminal Procedure did not disclose how the petitioner was connected with the crime; that co-accused, namely, Wilayat Khan was granted bail; that the petitioner is no longer required as the investigation is completed and that the petitioner is a juvenile and is entitled to the benefit of sub-section (3) of Section 6 of the Juvenile Justice System Act, 2018 (the Act), which is reproduced as under:
“(3) Where a juvenile is arrested or detained for commission of a minor or a major offence for the purposes of this Act, he shall be treated as if he was accused of commission of a bailable offence.”
3. The learned Additional Advocate General, Khyber Pakhtunkhwa and the learned counsel representing the complainant have referred to sub-section (4) of Section 6 of the Act, reproduced hereunder:
“(4) Where a juvenile of more than sixteen years of age is arrested or detained for a heinous offence, he may not be released on bail if the Juvenile Court is of the opinion that there are reasonable grounds to believe that such juvenile is involved in commission of a heinous offence.”
They submit that the petitioner attained the age of sixteen years on 12 February 2021 but was arrested after two months and that it is the date of his arrest which is the material date as per sub-section (4) of Section 6 of the Act and, consequently, the petitioner is not entitled to the benefit of sub-section (3) of Section 6 of the Act.
4. We have heard the learned counsel and with their assistance examined the documents and examined the provisions of the Act. The Trial and High Courts failed to appreciate the fact that the petitioner on the date of the occurrence, which was 12 February 2021, attained sixteen years of age and that the exception contained in sub-section (4) of Section 6 of the Act is attracted only if the petitioner was more than sixteen years of age. In this case the petitioner was exactly sixteen years of age on the date the offence was committed. Therefore, the applicable provision of the Act would be its sub-section (3) which provides that the petitioner has to be considered as if 'he was accused of commission of a bailable offence' if the offence is one as defined as 'minor or major offence' in the Act, which are respectively offences for which a maximum of three and seven years imprisonment is provided (Sections 2(o) and 2(n) of the Act). Neither the learned Judge of the Trial Court nor the learned Judge of the High Court had considered the fact that the petitioner on the date of the commission of the offence was exactly sixteen years of age, and was not more than sixteen years of age, a fine distinction to which the learned counsel for the petitioner has drawn our attention. The date of arrest in a criminal case is immaterial; an accused has to be dealt with under the law as applicable on the date that the crime is committed. Another principle of criminal law which advances the contention of the petitioner's
counsel is that if there are two possible interpretations of a provision of the law the one favourable to the accused is applicable, and all the more so when the accused is governed by a special law, which in the instant case is the Act.
5. Therefore, for the consideration of the petitioner's entitlement to bail it needs examination whether he is accused of committing an offence which falls under the definition of a 'heinous offence (Section 2(g) of the Act), however, it is not the prosecution case that it was a 'heinous offence.'
6. In view of the aforesaid and in view of the other points urged by Mr. Zia-ur-Rehman Tajik the petitioner is admitted to bail subject to furnishing bail bond in the sum of one hundred thousand rupees with one surety in the like amount to the satisfaction of the learned Judge of the Trial Court in the case arising out of FIR No. 23 registered on 13 February 2021 (in respect of the crime committed on 12 February 2021) at Police Station Khal, District Dir Lower under Sections 302, 324, 212 and 34 of the Pakistan Penal Code. Whilst setting aside the impugned orders this petition is converted into an appeal and allowed in the aforesaid terms.
(K.Q.B.) Bail allowed
0 Comments