Mst. JAMILA BIBI vs THE STATE
This petition for bail cancellation was filed by the complainant, Mst. Jamila Bibi, challenging the order of the Additional Sessions Judge-III, Haripur, which granted bail to the accused-respondent in a case registered under Sections 6 and 10 of the Offence of Zina (Enforcement of Hudood) Ordinance, 1979. The trial court had granted bail primarily on the grounds of delay in lodging the First Information Report (F.I.R.) and the minor age of the accused under the Juvenile Justice System Ordinance, 2000. The Peshawar High Court observed that the complainant had provided a plausible explanation for the delay, which is commonly ignored in sexual assault cases due to social stigma and fear. Furthermore, based on an X-ray report, the accused was determined to be over 18 years of age at the time of the occurrence, thereby excluding him from the definition of a 'child' under the Juvenile Justice System Ordinance, 2000 and the beneficial proviso of Section 497(1) of the Code of Criminal Procedure, 1898. Consequently, the High Court accepted the petition and cancelled the bail.
- Whether a delay in lodging an F.I.R. in cases of sexual assault is fatal to the prosecution's case at the bail stage if a plausible explanation is offered?
- Can an accused claim the benefit of minority under the Juvenile Justice System Ordinance, 2000 if an ossification or X-ray report establishes their age to be above eighteen years at the time of the occurrence?
- Does the first proviso to Section 497(1) of the Code of Criminal Procedure, 1898 apply to an accused who is determined to be over eighteen years of age at the time of the offense?
- Section 6, Offence of Zina (Enforcement of Hudood) Ordinance 1979
- Section 10, Offence of Zina (Enforcement of Hudood) Ordinance 1979
- Section 497(1), Code of Criminal Procedure 1898
- Section 2(b), Juvenile Justice System Ordinance 2000
' FAZAL-UR-REHMAN KHAN, J.---The learned Additional Sessions Judge-III, Haripur, by an order dated 10-3-2004 has granted bail to accused-respondent in case F.I.R. No.361, dated 25-12-2003 of Police Station Khanpur, under sections 6/10 of the Offence of Zina (Enforcement of Hudood)
Ordinance, 1979 and now through the present petition, complainant Mst. Jamila Bibi seeks the cancellation of his bail.
2. According to the F.I.R., complainant Mst. Jamila Bibi on 25-12-2003 at 10-30 a.m. Reported in the Police Station that about 6/7 months back, she took her tattles for grazing to the nearby "Kassi". It was about `Degar Vela' when the accused-petitioner, came there and at pistol point asked her to have sexual intercourse with her with the warning that if the same is disclosed to anybody, she would be done to death, whereafter he forcibly laid her on the ground, removed both her and his Shalwars and committed illicit intercourse with her against her will. In the evening, she returned to her home but on account of fear, did not disclose the matter to anybody. Now as she has become pregnant, she disclosed the same to her mother and other relatives. The learned Additional Sessions Judge granted bail to the accused-respondent mainly on the ground of delay in lodging of the F.I.R. And minor age of the accused-respondent under the provisions of Juvenile Justice System Ordinance, 2000.
3. I have heard Ms. Saeed Akhtar Khan, Advocate for the petitioner, Sardar Hafeez-ur-Rehman Abbasi, Advocate for the accused-respondent and Mr. Ghulam Younas Khan Tonolo, Advocate for the State and have also perused the record.
4. In support of the bail cancellation petition, the learned counsel for the petitioner contended that though there is a delay in lodging of the F.I.R. Out the same has been explained and in such-like cases, delay in lodging of the F.I.R. Is usually ignored. In support of his argument, the learned counsel for the petitioner placed reliance on 1999 PCr.LJ 151. He further contended that there is abundant evidence on record showing that at the time of occurrence, the accused-respondent was of more than 16 years and for the purpose of grant of bail on the ground of minority, the matter would be governed by First Proviso to subsection (1) of section 497, Cr.P.C. And if on the day of occurrence, the accused has not attained the age of 16 years, the grant of bail would be discretionary by deciding each case on its own merits. In support of his this argument, he placed reliance on 1999 SCM R 338. He also contended that one of the grounds on which the learned Additional Sessions Judge has granted bail to the accused-respondent is his age minor under the provisions of Juvenile Justice System Ordinance, 2000 but in a recent judgment; the Hon'able Lahore High Court has not only declared this Ordinance to be ultra vires but according to the X-ray report, at the time of occurrence, the accused respondent was more than 18 years of age.
5. The arguments of the learned counsel for the petitioner are not without force. So far as the delay in lodging of the F.I.R. Is concerned, the complainant has offered a plausible explanation and almost in identical case, reported in 1999 PCr.LJ 151 this Court ignored the delay.
6. As far as the grant of bail on the ground of minority is concerned, according to X-ray report dated 13-2-2004 which is more authentic than physical medical examination and school record, the accused-respondent was of the age of 19 years at the time of X-ray. This report was conducted on 13-2-2004 whereas the occurrence took place at about 6/7 months back. If this period is excluded from the age of 19 years as per X-ray report, then, on the day of occurrence, the accused-respondent was more than 18 years of age. The case of the accused-respondent is, therefore, neither governed by 'the proviso to subsection (1) of section 497, Cr.P.C. Nor by the definition of 'child' as given in section 2(b) of the Juvenile Justice System Ordinance, 2000, besides, the Ordinance being declared by the Hon'able High Court to be ultra vires. The plea that the trial of the accused-respondent has started, keeping in view the facts and circumstances of the case is without any force. The learned Additional Sessions Judge, therefore, has wrongly granted bail to the accused-respondent.
7. Accordingly, this petition is accepted. The to the accused-respondent is hereby cancelled. He is present in Court taken into custody and send to jail. He shall be produced before the learned trial Court as and when required.
Bail cancelled.