MUHAMMAD SHAFIQ Versus THE STATE
The petitioner, Muhammad Shafiq, sought post-arrest bail in case F.I.R. No.261 of 2001 registered at Police Station City Pakpattan Sharif, for offences under section 12 of the Offence of Zina (Enforcement of Hudood) Ordinance, 1979, read with sections 337-F(i)(ii), 377/511/34 of the Pakistan Penal Code 1860. The core legal question was whether the petitioner, claiming to be a juvenile and facing charges not falling within the prohibitory clause of section 497 of the Code of Criminal Procedure 1898, was entitled to post-arrest bail. The Lahore High Court held that since the offences did not attract the prohibitory clause and the petitioner was a minor whose further detention would not serve any useful purpose, the bail petition should be accepted. The key principle laid down is that minor accused persons facing charges outside the prohibitory clause of section 497, Cr.P.C., may be granted bail when their continued incarceration serves no purpose for the prosecution.
- Whether an accused who is a minor is entitled to post-arrest bail when the charged offences do not fall within the prohibitory clause of section 497 of the Code of Criminal Procedure 1898?
- Does an offence under section 12 of the Offence of Zina (Enforcement of Hudood) Ordinance, 1979 read with sections 337-F and 377/511 of the Pakistan Penal Code 1860 attract the prohibitory clause of section 497, Cr.P.C.?
- Whether continued detention in jail of a minor accused serves any purpose when the case requires further inquiry during trial?
- Section 12, Offence of Zina (Enforcement of Hudood) Ordinance 1979
- Section 337-F(i), Pakistan Penal Code 1860
- Section 337-F(ii), Pakistan Penal Code 1860
- Section 377, Pakistan Penal Code 1860
- Section 511, Pakistan Penal Code 1860
- Section 34, Pakistan Penal Code 1860
- Section 497, Code of Criminal Procedure 1898
ORDER
Muhammad Shafiq son of Allah Ditta, petitioner has sought his post‑arrest bail in case F.I.R. No.261 of 2001 registered at Police Station City Pakpattan Sharif, on 15‑9‑2001, for offences under section 12 of the Offence of Zina (Enforcement of Hudood) Ordinance, 1979, read with sections 337‑F (i) (ii), 377/511/34, P.P.C.
2. The allegations leveled against the petitioner in the F. I. R. are that the complainant accompanied the petitioner on his own request as the petitioner had informed the complainant that the electric board of his uncle needed some repair. It is further contended that while the petitioner alongwith complainant was passing through the graveyard of Chiragh Shah, they were surprised by Akmal Farid alias Goshi co accused and after his arrival, the petitioner as well as Akmal Farid took out knives from their pockets and tried to commit sodomy with the complainant. However, they failed to do so. During scuffle the complainant received injuries at the hands of the petitioner and his co‑accused. The petitioner has been arrested in this case and after investigation is in judicial lock‑up.
3. The learned counsel for the petitioner submits that the petitioner was juvenile as he was about 16‑1/2 years of age at the time of occurrence. He has stated that in fact a scuffle took place between the parties and the contents of the F.I.R. relating to the attempt of commission of sodomy are not correct.
4. On the other hand, the learned counsel appealing on behalf of the State has vehemently opposed the bail application and has contended that the petitioner was named in the F.I.R. and the knife has been recovered from him that there was no background of enmity so s to falsely implicate the petitioner in this case and that the petitioner tried to commit a heinous offence, therefore, deserves no concession.
5. I have heard the learned counsel for the parties and gone through the record. It has been noticed that school leaving certificate Annexure D of this petition shows that the petitioner was less than 17 years on the date of occurrence. Sections 337‑F (i and ii) and 377/511. P.P.C. do not attract the provisions of prohibitory clause of section 497, Cr.P.C. In the given circumstances, whether the offence under section 12 of the Offence of Zina (Enforcement of Hudood) Ordinance, 1979, was made out or not would be seen during trial. The petitioner is minor and his further detention in jail would not serve any purpose for the prosecution, therefore, relying upon the case of Siraj Din v. Saghir- ud‑Din alias Goga and another (1970 SCMR 30), I am inclined to allow this petition and admit the petitioner to bail, subject to his tendering bail bonds in the sum of Rs.50,000 with one surety in the like amount to the satisfaction of the trial Court.
S.M.A.H./M‑1212/L Bail granted.