Muhammad Ismail son of Abdul Karim, resident of Babbar Pucca P. S. Parowa, Tehsil and District Dera Ismail Khan is charged under section 6 of Zina (Enforcement of Hudood) Ordinance, 1979, vide F. I. R. No, 51 dated 13-7-1982, lodged by Allah Diwaya. He applied for bail to the Ilaqa Magistrate but the same was rejected vide order dated 28-7-1982. He then approached the Court of Session but the learned Sessions Judge, D. I. Khan, vide his order dated 12-9-1982 also refused him bail. Hence, the present petition seeking bail.
2. Briefly stated, the prosecution case is that on 13-7-1982 Allah Diwaya son of Moosa Khan lodged the present first information report No, 51 to the effect that his grand-daughter Mst. Nasim Akhtar alias Naseemo used to go to the mosque for recitation of Holy Quran from Hafiz Muhammad Ismail son of Abdul Karim and on the day of occurrence as usual when she sent there, at about "Peshin qazawela" came weeping to the house and her Shalwar was blood-stained too; that on inquiry the girl, who was aged about 9-10 years, informed him that the accused petitioner taught the lesson from the Holy Book to all the pupil, as usual, and at the close of the period, asked the girl to go and see whether father of the accused petitioner was present in his house or not ; that on this the girl went to the house and when returned to the mosque with information that his father was not there, the accused petitioner closed the door of the mosque and forcibly took out the trousers of the girl and committed rape on her ; that when the girl raised hue and cry the accused petitioner threatened her not to cry.
3. Learned counsel for the accused petitioner Mr. Muhammad Karim Anjum Qasuria vehemently argued that though the offence committed by the accused petitioner is an heinous one, yet on the ground of minority his client is entitled to bail. In support of his arguments, he cited so many authorities which I will discuss in the following paragraph. Learned counsel appearing for the State, however, opposed the bail application and contended that on the ground of minority too the accused petitioner is not entitled to bail, rather the record shows that he was able to commit rape on the girl.
4. Record perused. No doubt, the accused petitioner has allegedly committed an heinous offence but the question for consideration falls in this case, at this stage, as to whether the accused is a minor or not. A reference to Siraj Din v. Saghir-ud-din alias Goga and another will make it clear that age of the accused of that case on X-ray examination falling to be 16-17 years as a good ground for bail even in case of capital offence. In this case, age of the accused petitioner has been given by the doctor, who examined him, to be 15/16 years. He was also examined by a Radiologist, whose report shows that he is 14/15 years of age.
5. Section 2 of the Offence of Zina (Enforcement of Hudood) Ordinance No, VII of 1979 defines the word "adult" as under : "adult means a person who has attained, being a male, the age of eighteen years or, being a female, the age of sixteen years, or has attained puberty".
And section 7 of the said Ordinance provides as under :- "A person guilty of zina, or zina-bil-jabr, shall if he is not an adult be punished with imprisonment of either description for term which may extend to five years, or with fine, or with both, and may also be awarded the punishment of whipping not exceeding thirty stripes : Provided that, in the case of "Zina-bil-jabe, if the offender is not under the age of fifteen years, the punishment of whipping shall be awarded with or without any other punishment."
In order to bring the case of the accused petitioner in the frame of arguable for the purpose of bail, the learned counsel for the petitioner has also cited Ali Muhammad v. The State wherein it has been held that `offence of Zina being not punishable under Ordinance VII of 1979 with imprisonment of ten years or more, grant of bail was held' a rule in such like cases. Another authority in support of this argument is &rid Khan v. The State wherein it was observed as follows : "Reasons present for believing that accused petitioner was not guilty of offence punishable with death, life imprisonment or imprisonment of ten years or more, accused petitioner was allowed bail."
Here, in the case the accused petitioner is admittedly minor as reported by the Radiologist that he is 14/15 years of age, therefore, his case at the most 'will come under section 7 of the Ordinance, where the punishment' has been provided up to five years' R. I., or with both. Lastly, the learned counsel for the accused petitioner made a reference to Amanat Ali.v. The State and argued that even in graver offence bar to grant of bail to minor does not apply under section 497, Cr. P. Code (V of 1898).
Learned counsel for the State could not rebut the above proposition of law by producing any authority of the superior Courts.
6. It may be mentioned here that on the last date of hearing it was ordered by this Court that the accused petitioner be produced today in Court, which has been done. By appearance too, be seems to be minor aged between 14/15 years.
7. Keeping in view the above cited authorities of the superior Courts and also the fact that the offence with which the accused petitioner stand charged, entails a punishment which may extend to five years, in view of his minor age, I hold that at this stage case of the accused petitioner is an arguable one for the purpose of bail. As such, 1 am constrained to accept this petition for bail and accordingly admit the accused petitioner to bail in the sum of Rs, 20,000 with two sureties for the like amount each, to the satisfaction of the Ilaqa Duty Magistrate. 1970 SCM R 30 1982 P Cr. I., J1 2 3 4 1 2