1. By a short order, dated 16th December, 1981, I had granted bail to petitioner Abdul Manan. This order gives the reasons on the basis of which said bail was granted.
2. The charge against the petitioner is that on 23rd May, 1981, he persuaded Maula Ditta, a small boy aged 6/7 years and a student of first class of Primary School to accompany him to-a field at about 12-30 p. m. After the school hours and there had carnal intercourse with Maula Ditta against the order of nature. On the noise raised by the victim, he was apprehended at the spot and charged with offences under section 12 of Ordinance VII of 1979 and section 377, P. P. C.
2. Before the Additional Sessions Judge, Lahore, school certificate of petitioner was produced on the basis of which he found that petitioner was of 15 years of age at the time of commission of the offence but declined to grant him bail on the ground that according to section 2 (a) of Ordinance VII of 1979, adult means a person who has attained puberty and petitioner having attained the age of puberty as is clear from medical report of the doctor, he'could not be granted bail for offence under section 12 of Ordinance VII of 1979, which is punishable with R. I. For 25 years and section 377, P. P. C. Which is punishable with K. I. For ten years.
3. However, the said definition of the word 'adult' in Ordinance VII 1979 relates to the culpability of persons accused of offences under certain sections of the said Ordinance (not section 12 of said Ordinance) and is wholly irrelevant to the question of grant or refusal of bail which is governed exclusively by section 497 read with section 498, Cr. P. C. According to later part of section 497 (1), if there are reasonable grounds to believe that the person brought before the Court has been guilty of an offence punishable with imprisonment for 10 years or more, he is not to be released on bail.
4. There is, however, a proviso which immediately follows this provision and that is that Court may direct that any person under the age of sixteen accused of such offence may be released on bail. It is clear that this proviso removes the embargo placed on the power of B Court to grant bail to person below the age of sixteen accused of an offence punishable with R. I. For ten or more than ten years. Therefore, even though petitioner Abdul Manan appears to the Court to have committed the said offences punishable with 25 years' R. I. And 10 years' R. I. The Court has the discretion to grant him bail. The question, however, is what are guidelines for exercise or refusal of discretion for or against an accused person. After giving my anxious thought to the question, I have come to the conclusion that normal rule is that such an accused person should be granted bail, unless there is something in his conduct (apart from the normal acts constituting the offence in question) to disentitle him to grant of bail. I am fortified in this view of mine by observations made by their Lordships of the Supreme Court in case of Haji Fazal Elahi v. Mrs. Farah Naz and another , that discretion in such circumstances should be exercised in the light of facts and circumstances of the case and policy of law is that very young persons should be granted bail in the absence of some circumstances disentitling them to grant of bail. In my opinion in the present case apart from the normal acts constituting the offences in question, there has been nothing in the conduct of petitioner to disentitle him to the grant of bail. It is in view of this, that I C had in my short order dated 16th December, 1981, allowed bail to petitioner. This order will form part of said order dated 16th December, 1981.
5. 1979 SCM R 109