Petitioner seeks pre-arrest bail in case FIR No, 179 dated 16.6.2006 under Section 12 of Offence of Zina (Enforcement of Hudood) Ordinance, VII of 1979 read with Section 377 PPC registered with P.S. Saddar Burewala, District Vehari.
2. According to the FIR the allegation against the petitioner is that he alongwith co-accused namely Arif abducted Shakil Anjum son of the complainant by way of inducement and took him to barlay field, where Arif co-accused subjected him to unnatural offence, whereas the petitioner remained there at the spot, when the complainant reached at the place of occurrence, both, the petitioner as well as his co-accused Arif. ran away and then victim told the complainant that earlier to Arif, Rasul Khan petitioner also committed unnatural offence with him.
3. It is submitted by learned counsel for the petitioner that after investigation it has come out that the petitioner was only present but never committed any unnatural offence with the victim and that the main co-accused Arif is roaming in the area and has not been arrested by the police with the connivance of the complainant himself. It is next argued that at the time of occurrence the petitioner was below eighteen years of age and thus is entitled to the protection of Juvenile Justice System Ordinance, 2000.
4. On the other hand, learned counsel for the complainant as well as state have opposed this bail application by contending that there is no mala fide on the part of the prosecution or the complainant which is the basic requirement for claiming the concession of pre-arrest bail; and that the victim in his statement under Section 161 Cr.P.C. specifically named the petitioner for committing unnatural act with him and that even if the contention of learned counsel for the petitioner that he has been found to be mere present at the place of occurrence, is believed, even then the petitioner cannot be absolved of his liability in terms of Section 12 of the Ordinance.
Further, that though the petitioner is not admitted as a juvenile, yet the said question can only be determined for the purpose of trial or for bail after arrest and not for pre-arrest bail, therefore, if the petitioner was below eighteen years at the time of offence even then he cannot be allowed pre- arrest bail being involved in a heinous offence.
5. I have considered the arguments of learned counsel for the parties and have also perused the record.
6. As the learned counsel for the petitioner has failed to point out any mala fide on the part of the prosecution or the complainant and further in the presence of statement of the victim explicitly involving the petitioner in the commission of unnatural offence with him, I am afraid the petitioner is entitled to concession of pre-arrest bail. So far as the question of protection under Juvenile Justice System Ordinance, 2000 is concerned, there is considerable force in the contention of learned counsel for the complainant that the same can only be considered at the trial or for the purpose of post-arrest bail and for considering pre-arrest bail application. Resultantly, I am not inclined to extend the concession of pre-arrest bail to the petitioner at this stage, this petition as such is dismissed and ad-interim pre-arrest bail earlier granted to him is recalled.