' The petitioner, Jumma Khan, has moved this application for his release on bail in case No,111, dated 15-8-1999 of Police Station Paroa registered under section 377, P.P.C. Read with section 12 of the Offence of Zina (Enforcement of Hudood) Ordinance, 1979, as he could not succeed in his attempt for such relief in the lower Courts.
2. The victim of this case is Abdul Saeed who is a boy of 9/10 years and has lodged a report on 15- 8-1999 at 12-30 hours to the effect that in the morning of the eventful day after leaving his cow with the cattles of Muhammad Akram in the field, he was returning to his home while on the Katcha roadside, the petitioner caught hold of him and forcibly took him towards the Jungle and committed sodomy on him and, thereafter, his co-accused Bilal, also came and subjected him to his unnatural lust. After this unhappy incidence, the child came to his house but his father was out in connection with his work and on his return the episode was stated to him, whereafter he came to the police station in the company of his father, namely, Hameedullah, and lodged the report.
3. The learned counsel for the petitioner has contended that the petitioner is below the age of sixteen years and, as such, he is entitled to the concession of bail. In this respect he placed reliance on his School Leaving Certificate which is placed on file as Annexure "F", where in his date of birth is shown as 4-1-1987. He also made a reference to the medical report, dated 5-8-1999, wherein it is mentioned that no penetration has been performed which, according to the learned counsel, is a necessary ingredient for the commission of the offence. He also criticized the case of the prosecution on the point that according to the medical report some semen like stains were seen on the garments of the victim and such part of the attire were cut down and sealed for the purpose of chemical analysis, but so far the prosecution has not procured the laboratory report. He placed reliance on 1998 M LD 2057 on the ground of minority and 1995 PCr.LJ 541 on the point of consideration between the medical report and the version of the complainant and that there is some delay in lodging the F.I.R.
4. On the other side, the learned counsel appearing for the complainant, has opposed the bail application with his submission that the petitioner is directly charged in the F.I.R. On the same day when the occurrence took place and the delay of small duration has been successfully explained by the complainant which occurred due to the absence of the father of the victim child and no sooner his father arrived, the matter was promptly reported in the police station. He also submitted that the charge against the petitioner is not the outcome of any malice or enmity. A child of 9/10 years of age has come forward with an upright version. The medical report prepared on 5-8-1999, prima facie, supports the version of the complainant, as semen like stains were seen on the garments of the complainant. The learned counsel further submitted that the observations of the doctor with regard to the non-penetration would not be of any help to the petitioner as, according to him, even if the factum of penetration, for the sake of arguments, is excluded from consideration, even then the case of the petitioner would fall under section 511, P.P.C., i,e, an attempt to commit an offence punishable for imprisonment for life and in such-like eventualities, the term of punishment shall extend to half of its longest term provided for the offence. In the instant case under section 377, P.P.C., the punishment is life imprisonment and, as such, it will be more than ten years, which again brings the case of the petitioner within the prohibitory clause of section 497, Cr.P.C. Thus, the petitioner is not entitled to the concession of bail. In support of his contentions, reliance was placed on the cases reported as 1978 SCM R 235, 1984 PCr.LJ 1137 and 1995 PCr.LJ 574.
5. Learned counsel for the State while adopting the arguments of the learned counsel for the complainant has also vehemently opposed the bail application.
6. I have heard the rival arguments of both the sides and have gone through the record.
7. The main stay of the arguments of the learned counsel for the petitioner is the ground of minority, who placed his reliance on the School Leaving Certificate, but the matter of the petitioner was referred to Medical Board for the proper assessment of age of the petitioner. The Board comprised three doctors, i,e, a Radiologist, a 'Physician and a Surgeon, who have given a unanimous report about the age of the petitioner in the following words:- "The Board thoroughly examined, necessary investigation done. Findings of the Board are as follows:--
(1) Sex organs well-developed.
(2) Secondary sexual character developed.
(3) X-Ray for age done and his apparent age is 15 years and bone age is 15-16 years."
' In this respect, the report of the Radiologist is also available on the file, according to which the age of the petitioner is 15/16 years.
8. I had also summoned the petitioner from jail on the application of counsel for the petitioner for assessing his physical appearance, who was produced before me and I am also of the opinion that his age would not be, apparently, less than what has been given by the Radiologist. On the question of age in such-like cases, I derive wisdom from the case of Muhammad Sharif v. The State reported in 1999 SCM R 338, wherein it has been observed as under:-- "Furthermore, it has been time and again laid down that merely because a person is 16 years of age would not make him entitled to the grant of bail automatically. Each case has to be examined in the light of its own facts and the discretion has to be exercised judicially and not arbitrarily."
9. As for as the circumstances of this case are concerned, there is no enmity between the parties and, as such, it is not a case of false implication. The delay has been sufficiently explained, because the victim, a child of 9/10 years, could not be expected to go to the police station without being associated with some elderly person like his father, who, on arrival of the victim to the house, was not present there. Moreover, a judgment of this Court in Criminal Miscellaneous No,105 of 1998, titled Atta Muhammad v. The State in a case of similar nature is also before me where the bail was refused to the petitioner, amongst others, with the following observations:-- "It is by now well-settled that an accused under the age of sixteen years is not entitled to bail as of right and each case is to be judged according to its circumstances."
10. In view of the above discussion, I am of the view that on the data available before me, sufficient grounds exist to connect the petitioner with the offence he is charged with which falls within the prohibitory clause of section 497, Cr.P.C. Therefore, I have no inclination to give him the discretionary relief of bail.
11. Resultantly, this bail application is dismissed. However, the prosecution is directed to submit complete challan of the case within fifteen days and the trial Court shall conclude the trial of the petitioner within six months.