The petitioner was arrested and challaned under Article 12 of Offence of Zina (Enforcement of Hudood) Ordinance, 1979 and section 377, P.P.C. Was also added.
2.' F. I. R. No.130/94 was registered at Police Station City, Raiwind on a written application made by Muhammad Anwar son of Talehmand on 8-6-1994. It was alleged in the application that his son Naveed Hussain aged about five years had gone to a shop on 7-6-1994 at about 2 p.m. For making some purchase. Tariq petitioner, while Naveed Hussain was on his way kidnapped him and took him to the Haveli near the shop and subjected to his unnatural lust. The cries of the kid attracted Ghulam Hussain and other children of the Mohallah to the spot who witnessed the occurrence.
Tariq relieved his son on seeing Ghulam Hussain etc. His son came weeping to the house and narrated the whole occurrence. The petitioner moved an application before the Court of Session which was dismissed on 14-9-1994, hence this petition;
3. It has been argued by the learned counsel for the petitioner that there was an unexplained delay of more than twenty-eight hours and that the only alleged witness of the occurrence has sworn an affidavit to the effect that he had not in fact seen but had heard about the occurrence and that the story of the prosecution has thus been fatally smashed. It has also been submitted that the petitioner was of tender age and as per copy of the Birth Entry he was only a month over sixteen years of age and the period of one month was ignorable and the petitioner was thus entitled to the concession of bail as his case was covered by proviso to subsection (1) of section 497, Cr.P.C. And that no challan has been filed in Court and that the medical examination had not shown any mark of violence on the person of the subject.
4. The learned counsel appearing on behalf of the State has opposed the grant of bail and has submitted that the petitioner was not covered by the exception as contained in subsection (1) of section 497, Cr.P.C. As he was not under the age of 16: He has referred to the medico-legal certificate where abrasions and lacerations were found in and around the anus coupled with, swelling and that the swa bs taken from the anus of the subject were also found to be stained with semen and blood and positive opinion of commission of sodomy was available on record. It has been further argued that offence under section 12 of the Offence of Zina (Enforcement of Hudood)
Ordinance, 1979 was punishable with imprisonment which may extend to 25 years and offence under section 377, P.P.C was also punishable with imprisonment of ten years and thus both the offences fell within the prohibitory clause.
5. During the arguments on 13-11-1994 the learned counsel for the petitioner had drawn my attention to an entry in the Medico-Legal Certificate of Naveed Hussain wherein number of police docket was given as 29 of 7-6-1994 and the name of Shabbir Hussain Constable No.4443 was given as the person who accompanied the subject. The examination was conducted at 10-15 p.m.
And the signatures of the said constable appear on the said M. L: C. As also the thumb -- impression of Akbar Ali complainant and Naveed Hussain minor. The E.I.R. Was registered at 6-30 p.m. On 8-6-1994. The learned counsel for the petitioner had stressed that docket number was in fact the number of report in Roznamcha and as such original Roznamcha was summoned for today, which has been examined. Report No.29 was not a docket but was a report not in connection with the present case and the A.S.I. Present in Court stated that docket was in fact a Rukka, which might have been retained by the doctor. Notwithstanding the above it is quite clear that there was no delay on the part of the complainant to take all steps within his power to set the machinery of the State in motion for getting the case registered and I do not feel inclined to give any benefit to the petitioner, at this stage, for the alleged delay of 28 hours.
6. Regarding affidavit of Ghulam Hussain suffice it to say that immediately after the occurrence Naveed Hussain narrated the occurrence to his father Muhammad Anwar, complainant and his statement to that effect cannot be brushed aside. The Investigating Officer also recorded the statement of Naveed Hussain son of Anwar Ali who was subjected to unnatural lust and he has given very lucid details of the occurrence.
7. No doubt the petitioner was of tender age but was not covered by proviso to subsection (1) of section 497, Cr.P.C. As he was not under 16 years age on the day of occurrence. The age of the petitioner is to be seen keeping in view the age of the subject who was of the age of five years and the petitioner was sufficiently senior in age to the subject to kidnap him and subject him to unnatural lust.
8. The offences alleged against the petitioner are of heinous nature. A child of five years of age has been subjected to unnatural lust and the report under section 173, Cr.P.C was also prepared on 20- 6-1994.
The petition has no force and the same is hereby dismissed.