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Criminal Miscellaneous No. 69-B of 1983, decided on 16th February, 1983.

- S. 497 - Bail, grant of - Petitioner, accused of committing sodomy on a child of five, below 16 years of age but having good understanding and bail pressed on ground of his age - Petitioner, held, not entitled to bail as a matter of right on ground of age alone-Bail declined, in circumstances.-[Age].

Irshad Hussain Jaffari for Petitioner.

Khan Atta Ullah Khan for the State.

This is an application for bail on behalf of Zulfiqar Ali, petitioner, in a case under section 12 of the Offence of Zina (Enforcement of Hudood) Ordinance, 1979 and section 377, P. P. C.

2. The prosecution case is that the petitioner kidnapped Ghulam Farid aged about 5 years in order to subject him to unnatural lust and thereafter actually committed sodomy upon him.

3. Learned counsel for the petitioner submits that the petitioner is less than 16 years of age at the time of the alleged offence, by reason of un soundness of mind he was not capable of knowing the nature of the act and that he is in jail for the last four months.

Learned counsel for the State has opposed this application on the ground that it is an heinous offence.

4. On 2nd February, 1983 I had directed the Medical Superintendent, District Headquarters Hospital, Sahiwal, to examine the petitioner and submit his report whether the petitioner had attained sufficient maturity of understanding the nature and the consequences of sodomy or not. He has submitted his report which reads as follow :-

"I have examined undertrial Zulfiqar son of Faiz, caste Rajput under section 377/12th July, 1979 Zina Ordinance on 9th February, 1983. He has good understanding to all questions put to him. He has good orientation of time and space. Except that while talking he stammers."

5. I have considered the arguments presented by the learned counsel for the parties in the light of the medical certificate detailed above. I find that according to the medical certificate this case is not covered by section 84 of the P. P. C. As for the ground of age i. e. less than 16 years it is well settled that an accused of less than 16 years of age is not entitled A to bail as a matter of right and cannot be given a licence to commit any offence which he likes. Furthermore the detention of the petitioner for about 4 months in ail, in the circumstances of the case, is not a ground to release him on bail. The offence under section 377, P. P. C. is, Punishable for life imprisonment and under section 12 of the Offence of Zina (Enforcement of Hudood) Ordinance, 1979, is punishable with death.

Without making any expression lest it may prejudice the merits of the case, I am of the opinion that it is not a fit case for grant of bail. Dismissed

S.G.D. Bail refused.

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