1988 P Cr (PLP)

‑‑‑S. 497‑‑Offence of Zina (Enforcement of Hudood) Ordinance (VII of 1979), Ss.12 & 7‑‑Bail, grant of‑‑Challan against accused not submitted in Court‑‑Accused in jail for last five months‑‑Accused below 16 years of age and their case falling under S.7 of Ordinance VII of 1979, punishable with five years rigorous imprisonment and not covered by prohibitory clause of section 497, Cr. P.C. ‑‑Bail granted in circumstances. Muhammad Bashir Khan and Khadim Nadeem Malik for Petitioners. Javid Masood for the State. Muhammad Akbar complainant reported at Police Station Makhdum Rashid, on 27‑6‑1986 that about five days ago at 12 mid‑night while he was returning from the house of his grandmother he was way laid by Maqsood Ahmad and Nasir Ahmad petitioners with the help of their co‑accused Nazir, a Military personnel, and was dragged in a nearby field, where they committed, carnal intercourse against the order of nature, with him turn by turn. He raised alarm which attracted Niaz and Jagar Din, etc. Seeing them approaching the petitioners as well as their co‑accused Nazir, ran away. The victim was examined on 24‑6‑1986 by the doctor two days late, who found marks of violence in the rectal region but postponed his final opinion till the report of rectal swabs was received from the Chemical Examiner. A positive report however, has been received from the Chemical Examiner. The petitioners were arrested on 13‑7‑1986 but their co‑accused Nazir has not yet been arrested as he is stated to have joined his Unit at Karachi. Amir Bakhsh, Inspector of Police, states that he is taking steps for his arrest. The petitioners' bail plea was declined by the lower Court; hence this application.

2. I have heard learned counsel for the petitioners as well as for the State and also perused the record.

3. Admittedly, the challan against the petitioners has not yet been submitted in Court. The petitioners are in jail for the last about 5 months. Both petitioners, according to the police record are below 16 years of age and as such they are not adult in the meaning of section 2(a) of Offence of Zina (Enforcement of Hudood) Ordinance 1979, (hereinafter called the Ordinance). Learned counsel for the petitioners contended that since the petitioners are not adult, therefore, their case falls out of section 12 of the Ordinance and prima facie falls under section 7 of the Ordinance which is punishable with 5 years' R.I. hence their case is not covered by the prohibitory clause of section 497 Cr.P.C. Learned State counsel is unable to controvert this argument successfully. On the top of it, the Investigation Officer states that according to his investigation the petitioners are innocent. Without expressing on merits of the case, in the circumstances narrated above I feel inclined to allow this petition. The petitioners, are directed to be released on bail subject to their furnishing bail‑bonds in the sum of Rs.20,000 with one surety in the like amount each to the satisfaction of A . C . /Duty Magistrate, Multan. M.Y.H./M‑523/L Bail granted.