NAIK MUHAMMAD vs THE STATE
This post-arrest bail petition was filed by the petitioner, Naik Muhammad, in connection with F.I.R. No. 60 dated 6-3-2002 registered under Section 12 of the Offence of Zina (Enforcement of Hudood) Ordinance VII of 1979 read with Section 377 of the Pakistan Penal Code 1860 at Police Station Sadar Mailsi, District Vehari. The prosecution alleged that the petitioner along with co-accused kidnapped a minor boy and subjected him to sodomy. The petitioner contended that the trial court determined he was under 18 years of age and that he had been continuously detained for about 16 months without trial. The court examined whether a juvenile accused detained for over a year without the conclusion of trial is entitled to statutory bail. Accepting the petition, the Lahore High Court held that under Section 10(7)(a) of the Juvenile Justice System Ordinance 2000, a juvenile accused of an offence punishable with death who has been continuously detained for a period exceeding one year without trial being concluded is entitled to grant of bail as a matter of right.
- Is a juvenile accused entitled to bail under Section 10(7)(a) of the Juvenile Justice System Ordinance 2000 if detained for over a year without conclusion of trial?
- What constitutes a child under Section 2(b) of the Juvenile Justice System Ordinance 2000?
- Section 12, Offence of Zina (Enforcement of Hudood) Ordinance 1979
- Section 377, Pakistan Penal Code 1860
- Section 2(b), Juvenile Justice System Ordinance 2000
- Section 10(7)(a), Juvenile Justice System Ordinance 2000
ORDER
' Naik Muhammad, the petitioner has sought for after arrest bail in case F.I.R. No,60 dated 6-3-2002 under section 12 of the Offence of Zina (Enforcement of Hudood) Ordinance No,VII of 1979 read with section 377, P.P.C. Registered with Police Station Sadar Mailsi, Tehsil Mailsi, District Vehari.
2. Briefly the prosecution case as per F.I.R. Is that on the night between 5/6-3-2002 at about 9 p.m.
Naik Muhammad (petitioner), Sarfraz alias Billa and Muhammad Nawaz alias Phaydo kidnapped Ghazanfar Ali the maternal-nephew of the complainant in relation and they took him to the arden of one Imam Din within the area of Fatehpur. They all three subjected him to sodomy there.
3. It has been argued on his behalf that he has falsely been roped in; that the learned trial Court has found him less than 18 yeas of age while he.Is behind the bars for the last about 16 months and so his case for the purpose of the matter in hand is covered under section 10(7)(a) of the Juvenile Justice System Ordinance, 2000 and thus, is entitled to bail on that score alone; and that he is previous non-convict.
4. Conversely, the learned counsel for the State has opposed the petition on the ground that he is named in the F.I.R.; that he along with his co-accused had kidnapped the said boy and they all had subjected him to sodomy; and
5. I have carefully considered the submissions made by the learned counsel for the parties with the help of available record.
6. There is with the petition the certified copy of order, dated 5-4-2003 recorded by Mr. Shakil Ahmad, learned Additional Sessions Judge, Mailsi. He has found him less than 18 years of age.
According to section 2(b) of the Juvenile Justice System Ordinance, A 2000, a child means a person who at the time of commission of an offence has not attained the age of eighteen years. He is stated to be behind the bars for the last about sixteen months. The same has not been disputed by the other side.
7. According to section 10(7)(a) an accused of an offence punishable with death, if has been detained for a continuous period exceeding one year and whose trial stood not concluded shall be released B on bail. Admittedly, his trial as yet has not commenced even. He, thus, is entitled to the benefit of the said section i,e, 10(7)(a) of the Ordinance (supra). He is stated to be previous non- convict.
8. In these circumstances, he is entitled to bail. The petition, therefore, is accepted and he is admitted to bail provided he furnishes bail bond in the sum of Rs,50,000 (Rupees fifty thousand) with one surety in the like amount to the satisfaction of the learned trial Court.