2004 P Cr (PLP)

Naik Muhammad, the petitioner has sought for after arrest bail in case F.I.R. No.60 dated 6-3-2002 under section 12 of the Offence of Zina (Enforcement of Hudood) Ordinance No.VII of 1979 read with section 377, P.P.C. registered with Police Station Sadar Mailsi, Tehsil Mailsi, District Vehari.

2. Briefly the prosecution case as per F.I.R. is that on the night between 5/6-3-2002 at about 9 p.m. Naik Muhammad (petitioner), Sarfraz alias Billa and Muhammad Nawaz alias Phaydo kidnapped Ghazanfar Ali the maternal-nephew of the complainant in relation and they 'took him to the garden of one Imam Din within the area of Fatehpur. They all three subjected him to sodomy there.

3. It has been argued on his behalf that he has falsely been roped in; that the learned trial Court has found him less than 18 yeas of age while he is behind the bars for the last about 16 months and so his case for the purpose of the matter in hand is covered under section 10(7)(a) of the Juvenile Justice System Ordinance, 2000 and thus, is entitled to bail on that score alone; and that he is previous non-convict.

4. Conversely, the learned counsel for the State, has opposed the petition on the ground that he is named in the F. I. R.; that he along with his co-accused had kidnapped the said boy and they all had subjected him to sodomy; and that according to the police record his age is 20/21 years.

5. I have carefully considered the submissions made by the learned counsel for the parties with the help of available record.

6. There is with the petition the certified copy of order, dated 5-4-2003 recorded by Mr. Shakil Ahmad, learned Additional Sessions Judge, Mailsi. He has found him less than 18 years of age. According to section 2(b) of the Juvenile Justice System Ordinance, 2000, a child means a person who at the time of commission of an offence has not attained the age of eighteen years. He is stated to be behind the bars for the last about sixteen months. The same has not been disputed by the other side.

7. According to section 10(7)(a) an accused of an offence punishable with death, if has been detained for a continuous period exceeding one year and whose trial stood not concluded shall be released on bail. Admittedly, his trial as yet has not commenced even. He, thus, is entitled to the benefit of the said section i.e. 10(7)(a) of the Ordinance (supra). He is stated to be previous non-convict.

8. In these circumstances, he is entitled to bail. The petition, therefore; is accepted and he is admitted to bail provided he furnishes bail bond in the sum of Rs.50,000 (Rupees fifty thousand) with one surety in the like amount to the satisfaction of the learned trial Court. N.H.Q./N-340/L Bail allowed.