This is an application by the State for the cancellation of bail granted to accused-respondent No.1 by a Magistrate of First Class, D.I. Khan, per his order, dated 27-5-1989, and Sessions Judge, D.I.
Khan, vide his order, dated 6-6-1989 to accused-respondents Nos.2 to 4, in a case registered against them at Police Station, Saddar D.I. Khan, under section 12 of the Offence of Zina (Enforcement of Hudood) Ordinance, 1979, read with section 377 of the Pakistan Penal Code, vide F.I.R. No. 166, dated 20-5-1989.
2. The prosecution case is that the accused-respondents had committed carnal intercourse against the order of nature with Ghazanfar Ali Shah, a boy of 9 years old.
3. S. Mushtaq Ali Shah, the learned counsel appearing on behalf of the State-petitioner, submitted that the reasons advanced by the learned Sessions judge while declining to cancel the bail allowed to accused-respondent No.1 and allowing bail to accused-respondents Nos.2 to 4 are not sound in law, because all the accused-respondents are directly charged by the complainant in a promptly lodged F.I.R.; that the report of the Chemical Examiner is in the positive which substantially supports the case of the prosecution and that the prosecution case is further corroborated by the medical evidence; that by appearance accused Nos.2 to 4 were capable of performing the carnal intercourse against the order of nature and, therefore, the accused-respondents were not entitled to the concession of bail.
4. As against this, Mr. Abdul Latif Khan Baluch, the learned counsel for the accused-respondents, placed on the file the age certificates issued by the Head Master, Government High School, Bandkorai D.I. Khan, according to which date of birth of each of the accused is as under:-- {{TABLE}} (1)Abdullah 01-03-1978 (2)Muhammad Ramzan01-10-1976 (3)Muhammad Arif 25-09-1975 (4)Ashraf Ali 30-10-1975 {{TABLE}} Learned counsel for the accused-respondents thus submitted that their case was squarely covered by the first proviso to subsection (1) of section 497, Cr.P.C. In that all of them were under the ages of 16 years at the time of commission of the offence and were, therefore, entitled to the concession of bail.
5. Ghazanfar Ali Shah, the victim, was medically examined on 20-5-1989 by a Doctor in the District Headquarters Hospital, D.I. Khan, and he found abrasions around his anus. His anus was also found very tender to touch with slight bleeding. Two anal swabs and a piece of Shalwar which was stained with seamen were taken and despatched to Forensic Science Laboratory, Peshawar, for analysis. Doctor Tariq Mehmood, Medical Officer of District Headquarters Hospital, D.I. Khan, examined on 23-5-1989, all the four accused-respondents for the determination of their ages and their capability to perform sexual act. According to him, all the four accused were capable of performing sexual act. From the examination of their physical features the Doctor opined that Muhammad Ramzan was aged 12/13 years, while the other three accused respondents were declared to be of the ages of 15/16 years each.
6. I have had the occasion to see the accused-respondents in Court. From their physical appearance, I found the accused-respondents, excepting Muhammad Ramzan accused, to be of more than the ages recorded in their respective School Certificates. The sexual characteristics of Abdullah, Muhammad Arif and Ashraf Ali accused were found by the Doctor to be fully developed.
Swabs were taken and sent to Chemical Examiner whose report, according to the Zimines, is in positive. The offence under section 37'7, P.P.C. Is punishable with 10 years' imprisonment which falls within the prohibitory clause of section 497(1), Cr.P.C. Similarly, the offence under section 12 of the Offence of Zina (Enforcement of Hudood) Ordinance, 1979, is punishable with imprisonment which may extend to 25 years and shall also be awarded the punishment of whipping not exceeding 30 stripes. The case against the accused respondents, therefore, falls under the prohibitory clause of subsection (1) of section 497, Cr.P.C.
7. As for the ground of age, it is well-settled that an accused of less than the age of 16 years is not entitled to bail as a matter of right and cannot be given a licence to commit any offence which he may like. In this respect, I am fortified by the two authorities; (1) Shahbaz Tufail v. The State 1978 SCMR 235 and Zulfiqar v. The State 1984 P Cr. L J 1137. In Shahbaz Tufail's case, his Lordship Ghulam Safdar Shah, J. As his Lordship then was, made the following observations at page 237:-- "Furthermore, under the proviso to subsection (2) of section 497, Cr.P.C., it was not open to a person to claim bail as of right, just because he was of tender age."
8. From the tentative assessm ent of the material placed on the file, the impugned order of the learned Sessions Judge appears to be perverse and arbitrary. The application for cancellation of bail by the State is accepted to the extent that the bail granted to Abdullah, Muhammad Arif and Ashraf Ali is recalled. They are present in Court, taken into custody and sent to jail. The case of Muhammad Ramzan, accused-respondent No.1, however, stands on different footing. By appearance also, he was of tender-age and was not apparently capable of committing sexual act.
The plea for cancellation of his bail is, therefore, not entertained.