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Criminal Bail Application No. 316 of 1984, decided on 15th November, 1984.

‑‑‑S.497‑‑Offence of Zina (Enforcement of Hudood) Ordinance (VII of 1979), Ss. 7 & 12‑‑Bail‑‑Both accused below eighteen years of age and could not be considered adult for purpose of punishment under S.12 of Hudood Ordinance‑‑Bail granted.‑‑[Age].

Yousuf v. State 1975 P Cr. L J 936 ref.

Siraj v. Saghir‑ud‑Din 1970 S C M R 30 and Yousuf v. State 1975 P Cr. L J 936 rel.

Madad Ally Shah for Applicants.

Ahmad Ali Memon for the State.

Date of hearing: 15th November, 1984.

According to the opinion of medical board constituted for the purpose of ascertaining the ages of the two accused, accused Nazir has been found to be between 13‑14 years of age; while accused Muhammad Juman is found between 17‑18 years of age on the date of examination. In so far accused Nazir is concerned learned State counsel does not oppose grant of bail on the ground of minority. However, with regard to accused Muhammad Juman, it is contended by the learned counsel that he is not entitled to the concession of bail as he was over 16 years of age and has to be tried as an adult. The accused are being tried with offence under section 377, P.P.C. and 34 and section 12 of the Hudood Ordinance, 1979. The learned counsel for the applicants has invited my attention to section 2 (a) of the Hudood Ordinance and according to the definition as given in section 2 (a) of that Ordinance an adult mean a person who has attained, being a male, the age of 18 years or being a female the age of 16 years. It is accordingly contended that the accused Muhammad Juman being below 18 years of age could only be punished under section 7 of the Hudood Ordinance, which prescribe a maximum punishment of 5 years or with fine or with both. It is also contended by the learned counsel that since the age of Muhammad Juman has been declared to be between 17‑18 years then keeping in view the decision of this Court in the case of Yousuf v. State 1975 P Cr. L J 936 the accused should be held to be minor and granted bail. The learned State counsel on the other hand opposes grant of bail to the accused Muhammad Juman on the ground that he is also charged with an offence under section 377 in which the maximum punishment could be transportation for life. In the case of Siraj v. Saghir‑ud‑Din 1970 S C M R 30, which has been relied on in the case of Yousuf v. State 1975 P Cr. L J 936 the grant of bail to an accused, who was between 16‑17 years was approved by Cornelius, C.J. (as he then was) on the ground of minority. In the present case, the learned counsel for the applicants has also argued that in view of definition given in section 2 (a) of the Hudood Ordinance, 1979 the accused Muhammad Juman could not be considered to be an adult for the purpose of punishment under section 12 of the Hudood Ordinance. In these circumstances and in view of the case law cited, I am inclined to admit the other accused Muhammad Juman also to bail in the case. I accordingly grant bail to both the accused in the sum of Rs.20,000 each, with one surety and P.Rs, in the like amount to the satisfaction of trial Court.

The findings of medical board with regard to ages of the applicant may be forwarded to the trial Court for reference and record as prayed by applicant's counsel.

M. Y. H. Bail granted.