This petition has been moved by the petitioner for grant of bail in case F.I.R. No.95 of 1995 which was registered at Police Station Saddar, Dunyapur, on 22-3-1995, on the basis of statement made by Abdur Rehman son of NaZam Din under section 12 of the Offence of Zina (Enforcement of Hudood)
Ordinance (VII of 1979) and under section 377, P.P.C.
2. The allegations as contained in the F.I.R. Relate to an occurrence wherein Aziz-ur-Rehman son of the complainant was taken away by Muhammad Imran to the tube well of one Habib Jat where Nadeem petitioner, Kaka, Shahid Mahmood and Kalay Khan were present. Aziz-ur-Rehman was asked to commit sodomy with Imran as the others used him to do the same but Aziz-ur-Rehman aged about 13 years and student of 9th class refused. Kaka and Shahid accused caught hold the victim by his arms and took off his Shalwar. Nadeem petitioner allegedly committed sodomy on him whereafter Kaka accused also committed the same offence. On raising of alarm by the victim Muhammad Akbar and Muhammad Munir were attracted to the spot who witnessed the occurrence.
3. Learned counsel for the petitioner has submitted that so far as the allegation against the petitioner of committed sodomy is concerned the same was not corroborated by any independent witness except the victim himself; the place of occurrence as given in the F.I.R. Was different from the one as shown in the site plan; that the petitioner is of tender age and his petition is covered under the proviso 1 to subsection (1) of section 497, Cr.P.C. He further contended that the petitioner was not an adult ' as defined in section 2 of Offence of Zina (Enforcement of Hudood) Ordinance (VII of 1979) and as such he is only to be convicted under section 7 of the said Ordinance wherein 5, years' imprisonment is provided as punishment and placed reliance on Maqsood Ahmad and another v. State 1988 PCr.LJ 565 the petitioner was in judicial lock-up for the last more than 5 months and challan has not been submitted so far by the Investigating Agency. He further submitted that Shahid Mahmood a co-accused of the petitioner was granted bail by this Court on 27-7-1995 in Criminal Miscellaneous No.1159-B of 1995 and that the case of the petitioner was a similar to that of the said accused.
4. Learned Assistant Advocate-General opposed the application of bail on the ground that a boy of 9th class was kidnapped and was subjected to sodomy and specific act of sodomy was attributed to the petitioner and that he is of 18/19 years of age; the offences under Hudood Ordinance and under P.P.C. Were covered by prohibitory clause of section 497, Cr.P.C. And that the petitioner as such is not entitled to bail.
5. The case of the petitioner is not similar to the case of Shahid Mahmood who was granted bail by this Court on 27-7-1995. The act of sodomy was not attributed to the said petitioner nor had he been attributed the act of kidnapping/abduction. So far as the judgment cited at the bar as reported at 1988 PCr.LJ 565, 1 respectfully disagree with section 7. Of Offence of Zina(Enforcement of Hudood) Ordinance (VII of 1979) as not applicable in the present case. The lesser punishment under section 7 was provided only for the A offence of Zina.Or Zina-bil-Jabr, where convict was not an adult. No such exception has been made in case of offence under section 12 of the said Ordinance. To appreciate the difference it would be appropriate to reproduce section 7 of the said Ordinance: "7. Punishment for Zina or Zina-bil-Jabr where convict is not an adult.---A person guilty of Zina or Zina-bil-Jabr shall, if he is not an adult be punished with 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: Provided that, in the case of Zina-bil-Jabr, if the offender is not under the age of fifteen years, the punishment of whipping shall be awarded with or without any other punishment."
The language of the section is very clear and by no stretch of imagination or implication the provisions of section 7 of the said Ordinance can be applied in the present case.
5. The definition of adult was also not relevant for the purpose of bail in the present case. Offences of Zina or Zina-bil-Jabr are punishable under section 10 and the punishment was subjected to the provision of section 7 of the said Ordinance. No such proviso has been made in section 12 of the Ordinance, wherein the word used is "whoever" and that would also include a person who is not an adult as defined in clause (a) of section 2 of the said Ordinance. More so section 377, P.P.C. Was not subject to any qualification and the word "whoever" is also used in the said section. Both the offences are punishable with imprisonment which falls within prohibitory clause of section 497, Cr.P.C. And as such the contention of the learned counsel for the petitioner is not tenable.
6. The petitioner has placed age certificate issued by Headmaster Government High School, Chak No.355 W.B. Dunyapur. According to the said certificate the date of birth of the petitioner was 2-10- 1979 and he was of less than 16 years of age on the date of occurrence. For considering the bail in the present case the age is relevant with regard to proviso 1 of subsection (1) of section 497, Cr.P.C.
As the petitioner was a person under the age of 16 years on the day of occurrence the same can be considered for the purpose of bail in the present case; 6-A. The petitioner was in jail for last more than 5 months and it has been conceded by the learned Assistant Advocate-General, that the challan has not been submitted in the Court so far.
7. The date of birth as given in the Register of Admission in a school is not the conclusive proof of age. The prosecution has not rebutted the entry in the Admission Register as given by the Headmaster in age certificate as no birth entry from the Register of Birth has been produced by either side. In respect of plea of tender age the learned counsel for the petitioner is supported by the Medical Officer who examined the petitioner. The Medical Officer gave his age as 14 years and in any case the age of the petitioner was less than 16 years.
8. In view of the above and failure of the Investigating Agency, to file report under section 173, Cr.P.C.
For a period of more than 5 months, is circumstance relevant to the exercise of discretion in favour of the petitioner.
9. The petition is therefore allowed. The petitioner shall be released on bail, subject to his furnishing bail bond in the sum of Rs.30,000 with two sureties each in the like amount to the satisfaction of A.C./Duty Magistrate, Dunyapur.