' IQBAL HAMEED-UR-RAHMAN, J.--- The petitioner seeks post-arrest bail in case F.I.R. No,561, registered with Police Station Dera Rahim, District Sahiwal on 29-12-2004 for an. Offence under section 10(3) of the Offence of Zina (Enforcement of Hudood) Ordinance, 1979.
2. The allegation against the petitioner is that while Mst. Naheed Akhtar victim was sleeping with her mother on the night in between 26/27-12-2004 he took her out of the room and committed Zina-bil-Jabr with her on pistol point.
3. Learned counsel for the petitioner contends that there is a delay of three days in getting the case registered and five days delay in the medical examination of the victim. Allegedly, the occurrence took place on 26/27-12-2004 at 11-30 p.m. While the F.I.R. Was registered on 29-42-2004 and no plausible explanation had been given by the prosecution. It is further stated.That the victim is of the age of 22 years while the petitioner is of 13-1/2 years, about more than nine years younger to the victim; that according to section 2-A of the Offence of Zina (Enforcement of Hudood) Ordinance, 1979, the definition of an adult person is "who is of 18 years of age" and only an adult person can be charged under section 10-A of the Ordinance as such the petitioner being of only 13-1/2 years is liable to be charged under section 7 of the Ordinance for which punishment is five years and the same does not fall - within the prohibitory clause. Reliance is placed on Zulfiqar Ali alias Kaka v. The State 1986 PCr.LJ 1013; Muhammad Nadeem v. The State 1999 PCr.LJ 463. Further argued that under section 10(5)(6) of the Juvenile Justice System Ordinance, 2000 "juvenile is a child under the age of 15 years shall not be arrested under any of the laws dealing with the preventive detention or under the provisions of the Code". Further argued that the petitioner is behind the bars since 18-10-2006 and as such the petitioner becomes entitled under the law for the concession of bail.
4. On the other hand, learned counsel for the State has opposed the bail application by arguing that it is yet to be determined whether the petitioner is juvenile and as such he cannot be considered to be juvenile on the basis of the documents placed on the record; that he had committed a heinous offence of committing Zina-bil-Jabr on pistol point and the offence falls within the prohibitory clause and as such disentitles the petitioner for the grant of bail.
5. Arguments heard. Record perused.
6. The main contention of the petitioner's counsel is that the petitioner is a juvenile and as such is entitled to the concession of bail under section 10(7)(c) of the Juvenile Justice System Ordinance, 2000, being a minor, thus, his case also falls under section 7 of the Ordinance, 1979. Accordingly, the punishment is of 5 years and the same does not fall within the prohibitory clause. In this regard he has placed on record a medical certificate issued by the Medical Superintendent, District Headquarter Hospital, Sahiwal in which his age has been declared to be around 14 years. His birth certificate issued by the Union Council No,13, Chak No,138/9-L, Sahiwal according to which the petitioner was born on 7-5-1991. The occurrence took place on 26/27-12-2004 and at that time the age of the petitioner was 14 or 14-1/2 years. In view of the age of the petitioner he becomes entitled to the concession of bail as provided under the law. The petitioner is behind the bars since 18-10- 2006 i.e. More than four months. Although the challan has been submitted before the Court but without commencement of trial and there is no likelihood of its commencement in the near future.
The petitioner cannot be kept behind the bars for an indefinite period as it would amount to punishing him before trial. Reliance in this behalf can be placed to Abdul Malik v. The State PLD 1968 SC 349. In such-like cases the grant of bail is a rule and refusal an exception. In the circumstances, the petitioner is admitted to bail subject to his furnishing bail bonds in the sum of Rs,50,000 (Rupees fifty thousand only) with one surety in the like amount to the satisfaction of the learned trial Court.