1990 P Cr (PLP)

Syed Ali Raza for the State. Date of hearing: 7th February, 1990. Bashir alias Boota petitioner who is involved in a case under section 377/342/34, P.P.C. read with section 12 of Ordinance VII of 1979, vide F.I.R. No.179, dated 30-5-1989, registered at Police Station Sanda, Lahore, seeks to be admitted to bail.

2. According to the F.I.R., the petitioner alongwith two others took the complainant Muhammad Ramzan to a cattle shed on the pretext that his master was calling him. The complainant is welder by profession. At that time, the petitioner was armed with an iron duster whereas one of his co-accused, namely Nadeem was armed with a pistol. There the petitioner and his co-accused gave threat to the complainant and all of them are alleged to have committed sodomy with him.

3. The learned counsel for the petitioner has not contested this petition on merits, because the petitioner is named in the F.I.R. and he is alleged to have committed unnatural offence with the complainant against the order of nature. He only pressed the bail of the petitioner on the ground of minority, on the basis of birth certificate placed on the record. According to the said document, the petitioner was born on 7-8-1976. Relying on Nazir and another v. The State 1985 P Cr. L J 1250 learned counsel contended that the petitioner being below eighteen years of age at the time of commission of offence, he could not be considered adult for purpose of punishment under section 12 of the Ordinance and as such is entitled to bail.

4. The learned counsel for the State vehemently opposed this bail application and submitted that the birth certificate was got prepared on 1-7-1989, i.e. after the registration of the case in order to prove, that the petitioner is under the age of eighteen. He further submitted that there is no independent evidence to show that the petitioner was actually born on 7-8-1976, except the bare work of the mother of the petitioner supported by an affidavit.

5. I have sent for the original record from the Municipal Corporation, Lahore and have examined the same. I find that the mother of the petitioner moved an application on 29-6-1989, for entering the date of birth of the petitioner in the record as 7-8-1976, and the entry was accordingly incorporated in the record on 1-7-1989, after charging Rs.205 as penalty

6. After hearing the learned counsel for the parties, I find there is no independent evidence on the record to establish that the petitioner was actually born on 7-8-1976. It appears that the said entry was got recorded in the record of the Municipal Corporation in order to make out a case for the grant of bail. It does not stand to reason why the parents of the petitioner remained mum for long thirteen years, and after the involvement of the petitioner in the present case, they thought of getting his date of birth entered in the record of the Corporation. From the documentary evidence brought on the record, am not convinced that the petitioner was actually born on 7-8-1976, because in the police record, his age is shown as 18/19 years. Thus there is no force in the submission of the learned counsel for the petitioner, that the petitioner at the time of commission of offence, was below 18 years. The petition is accordingly dismissed.

7. As the challan has already been submitted in the Court, therefore, the trial Court is directed to conclude the trial as expeditiously as possible, because the petitioner cannot be kept behind the bars by way of punishment at trial stage. S.A./B-187/L Bail refused.