1994 PLP 1120 (MLD)

Sajjad Haider applicant-accused has involvement in a case under section 12, Offence of Zina (Enforcement of Hudood) Ordinance VII of 1979, read with section 377, P.P.C. the allegation being that he as also his accomplice Mahboob had committed carnal intercourse with Muhammad Tasaddaq complainant's son Ansar Tasaddaq, aged 12/13 years, a student of 7th Class,. at about `deegarwela', on 22-2-1993, in the vicinity of Chowk Khokhar Mandi, P.S. Kot Laddha, District Gujranwala. The complainant had gone to Narowal to see his first cousin, and when he returned home, the incident was reported to him and he got the case registered at 10-30 p.m. on 23-2-1993, at the aforesaid police station. Learned counsel for the petitioner contends that the offence under the Hudood Laws will not be made out as Sajjad Haider had not abducted away the victim of the crime, but was already present in the 'Baithak' of the house of Mahboob, a class-fellow of Ansar. Another class-fellow Liaquat had duped Ansar and taken him along to the place of occurrence, where Sajjad Haider and Mahboob committed sodomy with him turn by turn.

2. Learned counsel for the accused has also drawn the attention of the Court to the chemical examiner's report, stating that the anal swabs of the victim of crime were stained with semen. He maintains that the boy having been got medically examined 32 hours after the alleged incident, the anal region could not possibly carry the semen still, as in the meantime the boy might have passed stools and anal canal cleaned. He cites in support of his contention, opinion of Modi and Taylor, and additionally places reliance on Farooq Ilyas v. The State 1988 PCr.LJ 1195(1):;-

3. The petitioner was below 16 years of age, at the time of occurrence, and had a statutory right to the concession of bail and in that behalf, 1988 PCr.LJ 311 and 1988 PCr.LJ 565/1359 have been relied upon. It is also submitted that the evidence available about commission of the alleged crime by the petitioner is of hearsay character and cannot be characterised as authentic and unimpeachable.

4. The accused was arrested a year ago, and is no longer required for any purpose of the prosecution, as on conclusion of investigation, complete challan has been submitted recently on 23-2-1994. Obviously the case will come up for trial in the Sessions Court, in accordance with its turn, in no near future. It would be unfair to keep the accused in the lock-up over an indefinite period, without trial, in anticipation of conviction. PLJ 1993 SC 338(sic) has been cited in urging that for age the school-leaving certificate should be taken as the final proof. The petitioner was a student of 7th class last year, and his academic career would also suffer a serious setback, if he is made to remain in the lock up till conclusion of the trial against him. I would, therefore, admit him to bail in the sum of Rs.15,000 with one surety in the like amount, to the satisfaction of A.C./Duty Magistrate, Gujranwala. N.H.Q./S-426/L Bail allowed.