P L D 1983 Peshawar 167 (PLP)

3. Learned counsel for the accused petitioner Mr. Muhammad Karim Anjum Qasuria vehemently argued that though the offence committed by the accused petitioner is an heinous one, yet on the ground of minority his client is entitled to bail. In support of his arguments, he cited so many authorities which I will discuss in the following paragraph. Learned counsel appearing for the State, however, opposed the bail application and contended that on the ground of minority too the accused petitioner is not entitled to bail, rather the record shows that he was able to commit rape on the girl.

4. Record perused. No doubt, the accused petitioner has allegedly committed an heinous offence but the question for consideration falls in this case, at this stage, as to whether the accused is a minor or not. A reference to Siraj Din v. Saghir‑ud‑din alias Goga and another (1974 S C M R 34) will make it clear that age of the accused of that case on X‑ray examination falling to be 16‑17 years as a good ground for bail even in case of capital offence. In this case, age of the accused petitioner has been given by the doctor, who examin?ed him, to be 15/16 years. He was also examined by a Radiologist; whose report shows that he is 14/15 years of age.

5. Section 2 of the offence of Zina (Enforcement of Hudood) Ordinance No. VII of 1979 defines the word "adult" as under "adult means a person who has attained, being a male, the age of eighteen years or, being a female, the age of sixteen years, or has attained puberty". And section 7 of the said Ordinance provides as under :‑ "A person guilty of zina, , or zina‑bil‑jabr, shall if he is not an adult be punished with imprisonment of either description for 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: Provided that, in the ‑ease 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." In order to bring the case of the accused petitioner in the frame of arguable for the purpose of bail, the learned counsel for the petitioner has also cited Ali Muhammad v. The State (1982 P Cr. L J 3) wherein it has been held that `offence of Zina being not punishable under Ordinance VII of 1979 with imprisonment of ten years or more, grant of bail was held' a rule in such like cases. Another authority in support of this argument is Farid Khan v. The State (1982 S C M R 949) wherein it was observed as follows "Reasons present for believing that accused petitioner was not guilty of offence punishable with death life imprisonment or imprisonment often years or more, accused petitioner was allowed bail." Here, in the case the accused petitioner is admittedly minor as reported .by the Radiologist that he is 14/15. years of age, therefore, his case at the most will come under section 7 of the Ordinance, where the punishment has been provided up to five years' R. I., or with both. Lastly, the learned counsel for the accused petitioner made a reference to Amanat Ali v. The State (1981 P Cr. L J 100) and argued that even in graver offence bar to grant of bail to minor does not apply under section 497, Cr. P. Code (V of 1898). Learned counsel for the State could not rebut the above proposition of law by producing any authority of the superior Courts.

6. It may be mentioned here that on the last date of hearing it was ordered by this Court that the accused petitioner be produced today in Court, which has been done. By appearance too, be seems to be minor aged between 14/15 years.

7. Keeping in view the above cited authorities of the superior Court and also the fact that the offence with which the accused petitioner stand charged, entails a punishment which may extend to five years, in view of hif minor age, I hold that at this stage case of the accused petitioner is an arguable one for the purpose of bail. As such, I am constrained to accept this petition for bail and accordingly admit the accused petitioner to bail in the sum of Rs. 20,000 with two sureties for the like amount each, to the satisfaction of the Ilaqa Duty Magistrate. Bail granted.