' Through this petition Ambreen Gul petitioner has sought pre-arrest bail in case F.I.R. No,331 registered at Police Station Factory Area, Faisalabad on 6-7-2002 for an offence under section 10 of the Offence of Zina (Enforcement of Hudood) Ordinance, 1979. The petitioner has approached this Court directly for her pre-arrest bail without approaching the Court of Session, Faisalabad in that regard in the first instance as the petitioner is a minor and she fears for her life at Faisalabad. In the peculiar circumstances of this case I have decided to exercise my concurrent jurisdiction in the matter of bail and have entertained this petition directly before this Court.
2. According to the F.I.R. Lodged by the petitioner's mother the accused persons mentioned in the F.I.R. Had been committing sexual intercourse with the petitioner for some time in the past and the petitioner had been threatened by those accused persons not to disclose the said fact to anybody.
During the investigation the local police came to the conclusion that the petitioner was a consenting party to the alleged sexual intercourse with her and, thus, the status of the petitioner in this case was transformed from one of a victim to that of an accused person and the local police now wants to arrest the petitioner in that connection. Hence, the present petition before this Court.
3. After hearing the learned counsel for .The parties and going through the record it has been noticed by this Court that in the F.I.R. No date or time of the alleged occurrence had been specified and the petitioner had been depicted in the as a victim rather than an offender. The petitioner is a minor girl aged about 13/14 years and her minority as well as gender attract the provisions of the first proviso to subsection (1) of section 497, Cr.P.C. Which provisions envisage a concession of bail for minor and female accused persons irrespective of gravity of the offence alleged against them.
The learned Additional Advocate-General has maintained before this Court that the investigation of this case has already been finalized and nothing is to be recovered from the petitioner's possession and, thus, sending the petitioner to jail at such a stage is not likely to serve any useful purpose at this juncture. In the backdrop of the fact that the petitioner has been depicted in the F.I.R. As a victim and she is admittedly a minor the assertion of the learned counsel for the petitioner that conversion of the petitioner's status from that of a victim to that of an accused person or an offender is an outcome of mala fide on the part of the local police has appeared to this Court to be an assertion which may not be without any substance or foundation. It goes without saying that a minor female lacks the requisite maturity or. Legal capacity to give consent to an act of sexual intercourse with her. B Thus, even if the petitioner had allegedly been a consenting party to sexual intercourse with her still on account of her legal incapacity in that regard she may not be treated as an accused person as in that situation it may be a case of a statutory rape.
4. For what has been discussed above this petition is accepted and the ad interim pre-arrest bail already allowed to the petitioner by this Court vide order dated 24-9-2002 is hereby confirmed subject to furnishing of a fresh bail bond in the sum of Rs,20,000 (Rupees twenty thousand only) with .One surety in the like amount to the satisfaction of the Area Magistrate of Police Station Factory Area, Faisalabad.
5. Before parting with this order it may, however, be clarified that any observation made in the present order shall not prejudice the Investigating Officer or the learned trial Court in any manner.