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Criminal Miscellaneous No.820-C/B of 1986, decided on 15th July, 1986.

---S. 497(5)--Offence of Zina (Enforcement of Hudood) Ordinance (VII of 1979), Ss. 2 it 7--Bail, cancellation of--Non-adult, whether entitled to bail as of right--Victim of crime innocent girl of 5 years--Accused grown up boy, found potent--Medical evidence supporting allegation of Zina-bil-Jabr--Non-adult held, could not claim bail as a matter of right in non-bailable offences and question whether accused was adult or not has to be determined at trial--Trial Court while granting bail had not properly considered question of grant of bail to accused--Bail cancelled in circumstances.

Kanwar Imam Din v. Muhammad Rafiq and others 1983 S C M R 791; Anwarul Haq v. The State P L D 1983 F S C 234; Zulfiqar Ali v. The State 1986 P Cr. L J 1013; Muhammad Ismail v. The State P L D 1983 Pesh. 167; Muhammad Anwar v. The State 1983 S C M R 1001 and Shakil Ahmad v. The State 1983 P Cr. L J 1942 ref.

Malik Muhammad Din for Petitioner.

M.Tayyib Wattoo for Respondents.

Nazir Bhatti for the State.

This is an application for the cancellation of bail after arrest granted to Muhammad Sarwar respondent No.1 by Additional Sessions Judge, Bahawalnagar in case under section lU(3) of the offence of Zina (Enforcement of Hudood) Ordinance, 1979, registered at P.S. Fort Abbas, vide F.I.R.No.107 of 1986.

2. The prosecution case is that the respondent committed rape upon Mst. Nazis, aged 5 years.

3. Learned counsel for the petitioner submitted that the bail has been allowed to respondent No.1 without legal and factual justification, inasmuch as the respondent is very much pubert and that after having rejected the application for pre-arrest bail of the respondent on 29-5-1986, there was no justification for allowing him bail after arrest after 7 days i.e. 5-6-1986. Reliance has been placed on cases title Kanwar Imam Din v. Muhammad Rafiq and others reported as 1983 S C M R 791 and Anwarul Ha, q. v. The State reported as P L D 1983 F S C 234. The learned counsel for the State has supported this application. Conversely, the learned counsel for the respondent has vehemently opposed this application on the ground that the respondent being of the age of 10/11 years, his case falls under section 7 of the Offence of Zina (Enforcement of Hudood) Ordinance, 1979 and since he cannot be punished with imprisonment exceeding 5 years, therefore, he was rightly allowed bail by the learned Additional Sessions Judge. Reliance has been placed on cases title Zulfiqar Ali v. The State reported as 1986 PCr.LJ 1013, Muhammad Ismail v. The State reported as P L D 1983 Pesh. 167; Muhammad Anwar v. The State reported as 1983 S C M R 1001 and Shakil Ahmad v , The State reported as 1983 P Cr. L J 1942.

4. I have considered the submissions made by the learned counsel for the parties with care. I feel persuaded to, agree with the learned counsel for the petitioner. I find that Mst. Nazis, the victim of the crime, who has been brought in the Court is an innocent female child of hardly 5 years in age; that the respondent is a grown up boy; that the medical report is that the respondent is not important; that it has been stated in the F.I.R.:---

that the medical evidence supports the allegations of the commission of Zina-bil-Jabr with Mst. Nazis; that as far the question of the application of section 7 of the Offence of Zina (Enforcement of Hudood) Ordinance, 1979, there are divergent interpretation of the word "adult" used in section 7 of the Offence of Zina (Enforcement of Hudood) Ordinance, 1979. In this case the question whether the respondent is adult within the definition of "adult" under section 2 of the Offence of Zinal (Enforcement of Hudood) Ordinance, or not, can properly be considered at the time of trial. Be that as it may, the fact remains there that persons who are not "adult cannot claim bail as a matter of right in non-bailable offences and that no licence has been given to persons of the age of 10/11 years to commit crimes of their choice. It seems to me that the learned Additional Sessions Judge has not properly considered the question of grant of bail to the respondent. He has not taken into account the age of the victim the harm/injury done/caused to her and the medical evidence which shows that the rape had been committed.

5. For what has been said above, I am of the view that a case for the cancellation of bail granted to the respondent by the learned Additional Sessions Judge is made out. The bail is, therefore, cancelled. The respondent be taken into custody and sent to jail and from there, he shall be produced before the learned trial Court on 22-7-1986.

S.A. Bail cancelled.

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