1. This application has been filed by applicant Aijaz Ali who is facing trial before Additional Sessions Judge, Mehar for an offence punishable under sections 7, 10 and 11, Offences of Zina (Enforcement of Hudood) Ordinance, 1979 arising out of Crime No,4 of 1998, Police Station Mehar.
2. On 11-1-1998 the complainant lodged the report stating therein that on 8-1-1998 his daughter Shazia came weeping and disclosed that the accused put off her Shalwar and committed rape upon her and on such complaint the complainant went to the father of the accused who kept him on hopes for Faisala but no Faisala was held for three days and the complainant then lodged the report. The learned counsel further submits that the applicant was arrested by police on 21-1-1998 and on the same day the bail application for bail after arrest was filed before the Sessions Judge, Dadu who granted interim bail to the accused/applicpt. The accused remained on such interim bail till 4-2-1999. The applicant was challaned and in the meantime case was transferred by the Sessions Judge, Dadu to the Additional Sessions Judge, Mehar for disposal which included the bail application. The Additional Sessions Judge, Mehar after hearing the hail application recalled the order passed by learned Sessions Judge, Dadu vide order, dated 4-2-1999.
3. Learned counsel for the applicant has pressed this hail application on the ground of age and that the applicant was on interim bail for one year and that the Medical Certificate is doubtful. The applicants' counsel has produced the School Certificate. According to school certificate the date of birth of the accused/applicant is shown as 3-3-1984, and, thus, on the day of incident he was below 14 years of age and even on the day of rejection of bail application, the applicant was below 15 years of age. The second submission of the learned counsel is that the lady doctor who examined the girl has issued certificate under some influence and, therefore, the accused though on bail moved an application for constitution of Medical Board in the month of February, 1998 for reexamination of the lady the board comprised of three senior doctors. The Medical Board gave the report on 19-3-1998. Conclusion and opinion of the board is as under:-- Conclusion
(i) At this belated stage of examination (about 60 days of alleged incident) there is no fresh finding suggestive of sexual violence observed.
(ii) Hymen is in tact. This finding is contradictory to the examination conducted by Dr. Safia Abbasi.
4. It is to be noted that hymen is anatomically deep seated in the girls before puberty which usually spare injury.
(iii) According to present law of land, valval penetration is sufficient to constitute the crime of rape (Zina-bil-Jabr). Injuries to valva can be verified if fresh.
5. Opinion The healed torn fourcehtte is suggestive of previous application of violence at valva so possibility of sexual violence cannot be ruled out."
6. Learned counsel for the applicant has submitted that in view of the report of Medical Board, the certificate issued by the lady doctor has become doubtful. The board has found the hymen intact.
7. The learned counsel has further urged that the accused remained on interim bail for a period of more than one year and during that period he did not misuse the concession of bail and the case though stood challaned, did not proceed. Learned counsel for the applicant makes such statement at the Bar that no charge has been framed. Learned counsel to substantiate the argument has relied upon the cases Zulfiqar Ali alias Kaka v. The State 1986 PCr.LJ 1013 and Muhammad Ismail V.
8. The State PLD PC. LI 1986 Pesh.
167. Learned counsel has also placed reliance on order passed in Ghulam Qadir v. The State Criminal Bail Application No,125 of 1997 of this Circuit Court where my senior noble brother Hamid Ali Mirza, J. Has granted the bail in similar circumstances.
9. The learned counsel for the State has argued that as far as age of the applicant is concerned, no doubt the applicant is minor but he states that the accused has committed a heinous offence, therefore, applicant does not deserve the concession of bail.
10. I have 'considered the arguments of the learned counsel for the parties. Admittedly the applicant is minor and on the day of incident his age was below 14 years. As far as the case-law for bail on the ground of age is concerned, there is ample law on both the sides, therefore, every case has to be decided on its own facts and circumstances. In the present case besides the other grounds raised by applicant counsel, I have found that the accused though arrested was never referred for the medical check-up to certify that the accused was capable of committing the sexual offence. The accused had remained on bail for one year and never misused the concession of bail. Besides that the medical evidence is yet to be established at the trial as some shadow appears to have been created by report of Medical Board on the first medical report given by lady doctor. The next pertinent point in favour of applicant for grant of bail is provision of section 7 of Offences of Zina (Enforcement of Hudood) Ordinance which reads as under:-- "7. Punishment of 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.
11. 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."
12. Keeping all these circumstances including the age of the accused of application at the time of commission of offence and his remaining on bail for more than one year and the maximum punishment which can be awarded to the applicant on proof is five years, I am of the view that the applicant has succeeded to make out a case for grant of bail. Accordingly I grant the bail to the applicant in the above case and he shall be released subject to furnishing surety in the sum of Rs,1,00,000 (Rs,one lac) and P.R. Bond in the like amount to the satisfaction of trial Court.