1. Granted subject to all just exceptions.
2. Applicant Shaukat Ali is facing trial for offence under section 10 of Offence of Zina (Enforcement of Hudood) Ordinance, 1979. It is alleged by the prosecution that minor girl Safia Mumtaz aged eight years went to the cabin of applicant, where he was selling bangles, to purchase bangles. The applicant took her inside, closed the door of the .Cabin, took up her shalwar, kept his hand on her mouth and attempted to commit sexual intercourse but ejaculated outside. Victim girl came and narrated the story of incident to her father, who accompanied her to the cabin of applicant and applicant admitted his guilt in presence of two witnesses Nazir Hassan and Qalander Bux.
1. Complainant Mumtaz Ahmed waited for his brother Anwaruddin and after informing him about the facts went to the police station where report was lodged. A bail plea of applicant was rejected by the trial Court vide order, dated 13-3-1989.
2. ' Bail plea of applicant is urged before me on several grounds: ' Firstly, that there is delay of 27 hours in filing of F.I.R. When the distance was hardly half furlong between the police station and spot. It is further submitted that complainant is father of minor girl and she narrated the facts to him and complainant went to the applicant and in presence of complainant and his two witnesses extra-judicial confession was made by applicant, as such complainant could have filed the F.I.R. Straightaway without waiting for his brother. On this premise, it is further submitted that explanation given in the F.I.R. That complainant was waiting for his brother is not adequate to condone delay of 27 hours.
3. ' Secondly, it is submitted by the counsel for the applicant that complainant Mumtaz Ahmed and two witnesses Nazir Hassan and Kalander Bux, who are appearing in this case, are common trio, who have been appearing in other police cases as well. In this context, copies of two reports are filed. First is true copy of F.I.R. In Crime No,299 of 1988 registered on 5-10-1988 at police station, Pano Akil and second is copy of entry No,13 of 1988 in the Station diary of Police Station Pano Akil on 1-8- 1986. In both these cases, complainant is Nazir Hassan and other two witnesses are Mumtaz Ahmad and Qalander Bux. It is submitted by the counsel for the applicant that these three persons collect 'Bhatta' for police and those who refuse are involved falsely in the cases.
4. ' Thirdly, the medical certificate in respect of examination of minor girl shows that there were no marks of violence and even according to the case of prosecution there was no penetration and the ejaculation was outside. Opinion of the doctor as recorded in the medical certificate is as under: "According to the above-mentioned findings, I conclude that no definite opinion can be given that rape has been committed or not."
5. ' Apart from the medical certificate, case of the prosecution is that Shalwar of minor girl was found to be stained with semen as well as clothes of applicant. In such circumstances, it will be for the consideration of the trial Court as to what particular offence has been committed.
6. 'Fourthly, it was submitted on behalf of the applicant that since on the day of incident applicant was 14 years, 10 months and 20 days old as per School Leaving Certificate, hence he is minor and on the ground of young age is entitled to bail. In this context, my attention has been drawn to section 2 of Offence of Zina (Enforcement of Hudood) Ordinance, 1979 (hereinafter to be referred as Zina Ordinance). In paragraph (a) of section 2 adult is defined as 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. Section 5 of Zina Ordinance envisages punishment for Zina liable to Hadd to a man who is an adult. Section 7 further provides that punishment for Zina or Zina-bil-Jabr where convict is not an adult is imprisonment of either description for a 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.
7. Section 18 of Zina Ordinance contemplates punishment for attempting to commit an offence and such punishment is specified to be of imprisonment for a term which may extend to one-half of the longest term provided for that offence or with whipping not exceeding thirty stripes, or with such fine as, is provided for the offence, or with any two of, or all, the punishments. Zina as such defined in section 4 of the said Ordinance which envisages that a man and a woman are said to have committed Zina "if they wilfully have committed sexual intercourse without being validly married to each other". In the explanation, it is stipulated that the penetration is sufficient to constitute the sexual intercourse necessary to the offence of Zina. It is contended before me on behalf of the applicant that keeping in view provisions of Zina Ordinance mentioned above, chances are that because applicant was below 16 years at the relevant time, he would be charged and punished, if prosecution proves its case for attempt punishment of which is provided under section 18 of the said Ordinance, for a term which may extend to one-half, which may be one-half of five years contemplated under section 7.
8. ' My attention has been drawn to section 20 of the Zina Ordinance in which it is provided that provisions of the Code of Criminal Procedure shall apply, "mutatis mutandis", and since provisions relating to bail are not excluded from application as such they shall apply with full force. First proviso to section 497(1), Cr.P. C. Empowers the Court to direct that any person under the age of sixteen years or any woman or any sick or inform person to be released on bail in spite of prohibition contained in that section for not releasing a person on bail if there appear reasonable grounds for believing that he has been guilty of an offence punishable with death or imprisonment for life or imprisonment for 10 years. Some cases have been cited in support of proposition that a person on the ground of young age can be released on bail in spite of prohibition contained in section 497(1), Cr.P.C. In the case of Siraj Din v. Saghir-ud-Din alias Goga and another 1970 SCM R 30, no interference was made by the Supreme Court with order of grant of bail on the ground that according to the X-ray examination accused appeared to be 16 and 17 years of age. In the case of Muhammad Anwar v. The State 1983 SCM R 1001, Supreme Court of Pakistan allowed bail in a murder case to the accused on the ground of young age and held that the assertion of prosecution that accused was 19 years of age was not sufficient to reject bail plea which was supported by an entry in School Leaving Certificate. In the case of Nazir and another v. The State 1985 PCr.LJ 1250, the bail was granted to two accused persons, who were below 18 years of age on the ground that they would not be considered adult for the purpose of punishment under section 12 of the Hudood Ordinance.
9. ' Lastly, reliance was placed on the case of Muhammad Rafiq v. The State 1987 PCr.LJ 1360 in which bail was granted on account of cumulative effect of several factors which made out a case for bail because according to birth certificate, age of accused was 16 years and according to the opinion of Police Surgeon based on ossification test, his age was 17 years and further fatal blow was not attributed to him.
10. Keeping in view the facts of the case stated above and the provisions of Zina Ordinance mentioned above and case-law cited above, I am of the view that case of applicant requires further enquiry and on the ground of young age he is entitled to bail.
11. ' I, therefore, admit him to bail in the sum of Rs,50,000 with one surety and P.R. Bond in the like amount to the satisfaction of the learned trial Court.