' Muhammad Asif petitioner aged about thirteen and half years was arrested on the 9th of October, 1999, in pursuance of a case registered vide F.I.R. 307 of 1999, dated 28th of September, 1999, under sections 10 and 11 of the Offence of Zina (Enforcement of Hudood) Ordinance of 1979, at Police Station Sherakot, District Lahore regarding an occurrence which took place in Ghausia Auto Workshop situated at a distance of one and half kilometer from the police station where the F.I.R.
Was lodged on the same day at 2-45 p.m. By Mst. Ruqqia Bibi mother of victim Mst. Asma Bibi aged about 13 years.
2. Learned counsel for the petitioner submits that the petitioner is admittedly thirteen and half years and is, therefore, entitled to the benefit of the 1st proviso to section 497, Cr.P.C.; that the petitioner is not an adult as defined in section 2-A of Ordinance VII of 1979 and, therefore, cannot be convicted under sections 10 and 11 of the said Ordinance and that his conviction could only be recorded under section 7 of the Ordinance wherein the maximum punishment is five years which does not fall within the prohibition contained in subsection (1) of section 497, Cr.P.C. And finally that the complainant, the prosecutrix as also the eye-witnesses have all exonerated the petitioner by swearing affidavits to that effect.
According to the X-Ray for determining the age of the petitioner placed on the record as Annexure "D" the petitioner is thirteen and half to fourteen and half years approximately. He is, therefore, clearly entitled to the statutory benefit of 1st proviso to subsection (1) of section 497, Cr.P.C. Which lays down that the Court may direct that any person under the age of 16 years may be released on bail even though there are reasonable ground for believing that he has been guilty of an offence punishable with death or imprisonment for life or imprisonment for ten years.
3. The word "adult" has been defined in clause (a) of section 2 of Ordinance No,VII of 1979 as follows:-- " ' Adult' means a person who has attained, being a male, the age of eighteen years ' Section 7 of Ordinance No,VII of 1979 provides the punishment of Zina or Zina-bil-Jabr where convict is not an adult and lays down that the maximum punishment for such a person may extend to five years, or with fine or with both. Therefore, the contention of the learned counsel for the petitioner is correct to the extent that even if a conviction is recorded the maximum sentence could be awarded to the petitioner is five years which does not fall within the prohibition contained in subsection (1) of section 497, Cr.P.C.
' Be that as it may, the complainant Mst. Ruqqia Bibi who is mother of Mst. Asma Bibi alongwith her son Muhammad Imran have sworn affidavits exonerating Muhammad Asif petitioner with the result that reasonable grounds within the meaning to subsection (1) of section 497, Cr.P.C. To believe that the petitioner is guilty of an offence punishable with death or imprisonment for life or imprisonment for ten years, prima facie do not exist anymore. However, the 'case against the petitioner may be a matter of further inquiry within the meaning of subsection (2) of section 497, Cr.P.C. Which entitles the petitioner to the grant of bail.
' Resultantly, this petition is accepted and the petitioner is granted bail provided he furnishes a bail bond in the sum of Rs,50,000 with two sureties each in the like amount to the satisfaction of the trial Court.