The allegation against the petitioner, who is stated to be of 11/12 years, is that he took away a little girl aged 21 years outside the village in a field and committed rape on her. A case under section 10/VIII/79, Zina Hudood Ordinance 1979 was registered against the petitioner on the same day i.e. 22-6-1980. The petitioner was arrested. An application for bail was filed before the learned Additional Sessions Judge who dismissed the same on 3-7-1980. Another application was filed on the ground that the two witnesses mentioned in the F. I. R. Had given affidavits that they had not seen anything. This application was, again, dismissed on 23-7-1980. The petitioner has filed this application for bail.
2. Learned counsel for the petitioner has contended that the petitioner is a boy of 9 years old and in proof thereof he has produced a photostat copy; of the birth certificate issued by the Secretary Union Council, Sultanke, Tehsil and District Lahore, showing, the date of birth of the petitioner as 10- 1-1971. It is also submitted that the allegation is false and no offence under the Zina Hudood Ordinance, 1979 was committed by the petitioner.
3. The first question that attracted attention was as to whether this Court has the jurisdiction to grant bail-as offences under the Zina (Hudood Ordinance are exclusively triable by the learned Sessions Judges and appeal against the conviction lies before the learned Federal Shariat Court- the High Court being not an appellate Court. Recently before the learned Federal Shariat Court, a person accused under the aforesaid Ordinance filed an appli--cation for bail. The learned Federal Shariat Court issued notice to the Attorney-General and to the Advocates-General of the four Provinces to examine as to whether it can grant bail prior to conviction because the juris--diction conferred on the Federal Shariat Court is to hear an appeal against conviction. After conviction, it may have the power like those in section 426 of the Cr. P. C. To grant bail. Prior thereof, there is no express conferment of powers on the Federal Shariat Court to grant bail. To determine as to whether it can or cannot, the Federal Shariat Court, as stated above, has issued notices. Now if the Federal Shariat Court were to come to the conclusion that it has no power to grant bail prior to conviction and this Court holds the same way, the people would be in the quandry. It would come to that a person against whom a case is registered under the aforesaid Ordinance would have no right of bail if refused by the learned Sessions Judge in any judicial forum till the decision of the case against him by the learned Session Judge which might take any amount of time. This cannot be presumed to be the intention of the Legislature. Further, the jurisdiction of the High Court cannot be deemed to have been ousted simply by inferences. The aforesaid Ordinance, while creating the Federal Shariat Court, has not, expressly or by necessary intendment abolished the jurisdiction of the superior' has appealed sections 497 and 498, Cr. P. C. The express and plenary powers of the superior Courts continue to exist and operate. Judg--ment of the learned Supreme Court in the case of Zahoor Elahi v. The State (PLD 1977 SC 273) may also be relied upon in this behalf. Besides this, it has to be seen as to what offence the allegations constitute i.e. Whether the allegations constitute an offence under the aforementioned Ordinance or not. It is the allegations, which are important to determine the character of offence and not the reference to section or an Ordinance by the Moharrir Head Constable who writes down the same in the F.I.R. It is to be noticed that the recorder of the F.I.R. Is not even an Investigating Officer. The person recording the F. I. R. Cannot be deemed to possess the powers to put down any section or Ordinance which he likes though that may change the channel of trial and lead to ouster of jurisdiction of superior Courts. From the perusal of the F. I. R. It is quite clear that the allegation against the petitioner who is stated to be of 10/11 year, is that he had committed rape on a little girl. Now section 83 of the P. P. C. Provides "nothing is an offence which is done by a child above seven years of age and under twelve, who has not attained sufficient maturity of understanding to judge of the nature and consequences of his conduct on that occasion." It is obvious that the petitioner who is nine and half years per birth certificate produced and 10/11 per the F. I. R. Would hardly be aware of what he was actually doing and that that constituted a serious offence. Question of commission of Zina would hardly arise in the circum--stances of the case at all. Now if the accused petitioner has committed no crime or that does amount to offence of Zina under the aforesaid Ordinance, as apparently it would hardly do, the fact that the recorder of the F.I.R. Had put down section 10 of the Zina Ordinance would not result in ousting the jurisdiction of the High Court nor in the circumstances the petitioner would be disentitled to bail. For graver offences bar to grant of bail to minor does not apply under section 497, Cr. P. C. The learned Additional Sessions Judge should have applied his mind more actively to the facts of the case than be appears to have done.
4. In view of the above, this petition is admitted. Notice. The petitioner in view of the tender age, 10 years, and circumstances of the case, is allowed interim bail in the sum of Rs. 5,000 (Rupees five thousand only) with two sureties in the like amount to the satisfaction of Assistant Commissioner/ Duty Magistrate, Sadar, Lahore.