Accused-petitioners Alamzeb, Waqar Ahmad and Muhammad Azhar were refused bail in case F.I.R.
No. 94, dated 17-7-2002 under section 377, P.P.C. Read with section 12 Offence of Zina (Enforcement of Hudood) Ordinance, 1979, Police Station Sherwan, by the learned Sessions Judge, Abbottabad by his order, dated 12-10-2002. Now the petitioners have approached this Court for their release on bail.
2. The alleged victim Muhammad Sohail aged about 16/17 years a student of 10th class made a report to the effect that he after taking the Computer Class, while returning to house from school, when reached near 'Nikki Galli' Mosque came across with Alamzeb, Waqar and Azhar, his class/desk fellows who took him to a Dhaka Jungle forcibly and after dragging him laid him down on the earth, then Waqar and Azhar opened the string of his Shalwar and Alamzeb committed sodomy. Thereafter Waqar and Azhar also committed carnal intercourse with him one by one and one after another. The complainant did make noise but since it was Jungle and not populated area, therefore, no one could be attracted to the accused hence quenched their thrust and after commission of an offence decamped from the spot. The complainant came to his house. His father was not present, he waited for him and on his arrival he narrated the whole story to him who accompanied the complainant to the police station where he lodged an F.I.R.
3. The learned counsel for the accused---petitioners argued that the petitioners were arrested in the instant case on 18-7-2002 and since then they are in the judicial lock-up. The accused- petitioners are minors whose case is being governed by Juvenile Justice System Ordinance, 2000 as they are below the ages of sixteen years. In this regard the learned counsel produced certificates from the concerned school. He also referred section 10(7)(b) and (c) of Juvenile Justice System Ordinance, 2000 and submitted that despite the right of bail accrued to the petitioners, the discretion vested in the trial Court has not been exercised besides the report of the Chemical Examiner is in negative. As such the petitioners are entitled to the concession of bail.
4. On the other hand learned counsel appearing for the State assisted by the learned counsel for the complainant advanced that question of false involvement does not arise as there is no motive.
According to the medical examination of the petitioners, they were capable of sexual intercourse. A heinous offence of unnatural act of sodomy has been committed by the petitioners on the person of victim which amounts to moral turpitude. Medical report on the person of the victim is in positive.
Chemical Examiner Report though in negative but the same is not of significance as after passing the stool by the victim the positive report is not expected. Further submitted that the trial of the accused-petitioners has been commenced, so at this, stage when the trial is on, the petitioners are not entitled to the concession of bail.
5. I have heard the learned counsel for the parties with great caution and have also gone through the record of the case as well as the relevant law on the subject.
6. Perusal of the certificates produced by the learned counsel for the petitioners regarding their ages would show that all the petitioners are below the ages of sixteen. The relevant section 10(7)(b) & (c) of Juvenile Justice System Ordinance, 2000 is thus reproduced hereunder for ready reference.
"10. Arrest and bail
(7) (b) if, being accused of any offence punishable for imprisonment for life has been detained for such an offence for a continuance period exceeding six months and whose trial for such offence has not been concluded; or
(c) who, being accused of any offence not punishable with death, or imprisonment for life, has been detained for such an offence for a continuous period exceeding four months and whose trial for such an offence has not concluded. "
7. Now following the above provision the present case is to be viewed in the light of the above text.
The history of the case is that the petitioners were arrested in the case on 18-7-2002 and since then they are in the judicial lock-up and their trial has not been concluded as yet meaning thereby that they are behind the bar exceeding four months. In the circumstances of the case the maximum punishment particularly in the cases of minors is always to be avoided because of tender age, childhood, his welfare future and the reformation being the duty of the State. Section 10(7)(c) of the Juvenile Justice System Ordinance, 2000 in the present scenario is very much attracted whereby it is given to understand that where in case of juvenile an accused person of any offence not punishable with death or imprisonment for life is detained for a continuous period exceeding four months and whose trial has not been concluded, shall be released on bail.
8. In view of the above discussion, am of the view that the case of the accused---petitioners very much falls within the purview of section 10(7)(c) of Juvenile Justice System Ordinance, 2000 on facts as well as on law. As such this bail application is accepted and the accused-petitioners are admitted to bail subject to their furnishing bail bonds in the sum of Rs.50,000 each with two sureties each in the like amount to the satisfaction or Illaqa/Duty Magistrate.