JUDGMENTMuhammad Rafiq Tarar, J.- Muhammad Afzal petitioner has moved this petition for cancellation of bail allowed to Muhammad Saeed alias Billo respondent by the learned Sessions Judge, Toba Tek Singh, in a case under Article 12 of Ordinance VII of 1979 and section 377 P.P.C.
2. The brief facts of the prosecution case are that on 22.2.1989 at about 5 p.m. Muhammad Saeed alias Billo respondent took away Muhammad Shahbaz, aged 8/9 years, towards the fields when he was playing in the play-ground outside the village. Soon after, Muhammad Afzal and Muhammad Javed, who were on way to their house, heard hue and cry from Square No.31 and rushed to that side. They saw the respondent committing sodomy with Muhammad Shahbaz. On seeing them, he ran awary from the spot.
3. The victim was medically examined on the same day. Bloodstained faecal matter was present on the perineum. There was a laceration 1 cm x 0.4 cm on the shin. The anus was swollen. There was a laceration 0.8 cm x 0.5 cm on the mucous memorane inside the anus.
The anal swa bs, Shalwar and shirt of the victim and Shalwar of the respondent were sent to the Chemical Examiner.
3. The grounds which weighed with the learned Sessions Judge for granting bail to the respondent were that according to the police papers and the medicolegal certificate the age of the respondent was fifteen years whereas according to birth-certificate his date of birth was 6.3.1971, therefore, there was a scope for further inquiry and that some more time was likely to be consumed in the submission of challan and the petitioner (respondent herein) could not be detained for an indefinite period of time.
4. Learned counsel for the petitioner contends that the FIR version finds material corporation from the medical evidence and the report of the Chemical Examiner, therefore, it was not a fit case for the grant of bail, particularly in view of the fact that a boy of very tender age was brutally subjected to carnal intercourse against the order of nature. He further submits that the opinion of the doctor regarding the age of the respondent cannot displace the entries in the birth-certificate. Learned State counsel also supports this petition.
Learned counsel for the respondent submits that the respondent has been falsely implicated due to enmity as the complainant party demanded the hand of his sister for Javed, brother of the victim, but her parents refused to oblige them.
5. Extract from the Register of Births, placed on the file, shows the date of birth of Saeed respondent as 8.3.1971 (not 6.3.1971 as mentioned in the order of the learned Sessions Judge; aIthough digit '8' is written in such a way that it can also be read as '6'). The Authenticity of the birth-certificate has not been challenged before me nor any material has been brought on record indicating that the date of birth has been incorrectly mentioned therein. Any thing recorded in the police papers or in the medicolegal report would not in any way outweigh the entry in the Register of Births. In his order the learned Sessions Judge had observed hat it was "true to say that the first-informant's version finds corroboration form medical evidence". If he had come to that conclusion then there was absolutely no justification for holding that the offence attributed to the accused "would not fall in the prohibitory clause of section 497 Cr.P.C." and there was "scope for further inquiry". In the absence of any material showing that the birth-certificate is not a genuine document, its entries have to prevail. The respondent was over 18 years of age at the time of occurrence. The prosecution version finds full support from the medical evidence and reports of Chemical Examiner. The offence falls within the prohibitory clause and there was absolutely no justification for the grant of bail. I, therefore, allow this petition and cancel the bail allowed to the respondent by the learned Sessions Judge. The respondent shall be arrested and sent to jail.