2002 P Cr (PLP)

Manzoor A. Bhutto for Applicants. Sharafat Ali Khan, State Counsel. Date of hearing: 24th September, 2001. Applicant Mansoor Ahmed and three others have been booked for an offence punishable under section 377/34, P.P.C. The F.I.R. of this incident was lodged by complainant Amanullah, alleging that on 5‑12‑2000 he was sleeping in a room alongwith six others when accused Muhammad Ramzan with the help of Abbas and Mansoor (the applicant) forcibly committed sodomy with him. Thereafter, Abbas and Mansoor s also committed unnatural offence with him by force. He further stated that other two persons namely Ejaz and Mumtaz were sleeping in the same room. Main contention raised by learned counsel for applicant is that the applicant is minor and he has remained in custody for a period of more than nine months, as such he is entitled to bail. He also relied on the affidavits of Ejaz and Mumtaz who have exonerated the applicant. Learned A.A.‑G. submitted that this is a heinous offence and there is sufficient evidence supported by the medical report. In support of bail plea the applicant's original school leaving certificate has been filed which shows his date of birth as 15‑8‑1988. Learned counsel for applicant has also filed a copy of entry in the birth register of Union Council, Gujrat showing the date of birth of applicant as 10‑4‑1986. Learned State Counsel pointed out that there is contradiction in these certificates. Nevertheless, the learned State Counsel himself relied on medical certificate issued by the Office of Police Surgeon, Karachi showing the age of the applicant to be about 17 years. All these documents would indicate that the age of applicant was not above 17 years at the time of commission of offence. Under section 2(b) of the Juvenile Justice System Ordinance, 2000 "Child" has been defined to mean a person who has not attained the age of 18 years at the time of commission of offence. In the instant case it cannot be denied that age of applicant was not above 17 years at the time of occurrence and as such he was a child within the meaning of said Ordinance. Under section 10(7)(b) of this Ordinance, a child in case of offence punishable with imprisonment for life is entitled to bail if his continuous detention exceeds period of six months, unless there is default in conclusion of trial on the part of such accused or the offence in serious, heinous, gruesome etc. within the meaning of proviso to this subsection. In this regard it would be relevant to point out that the main witnesses Ejaz and Mumtaz cited by the complainant to be sleeping in the same room, have sworn affidavits to the effect that they were in the same room but they had not seen if any offence was committed as alleged. In this view of the matter the tenor of the restriction contained in the aforesaid proviso to subsection (7) of section 10 stands to some extent softened. For the reasons stated above the application is allowed. The applicant be released on furnishing security in the sum of Rs.1,00,000 and executing P.R. Bond in the like amount to the satisfaction of trial court. H. B. T./M‑298/K Bail Granted.