MUSHTAQ AHMAD Versus THE STATE

Mushtaq Ahmad petitioner, has been charged under section 12 of the Offence of Zina (Enforcement of Hudood) Ordinance, 1979 (hereinafter referred to as the Ordinance), read with section 377, P.P.C. He sought his release on bail at the first instance with the learned Illaqa Magistrate which was declined vide him, order dated 19‑7‑1988. His application also met the same fate before the learned Sessions Judge, Swat as per order dated 31‑7‑1988. He has now approached this Court to be released on bail till the disposal of his case.

2. The case of the petitioner emanates from F.I.R. No. 44 dated 18‑6‑1988 made at 1330 hours with Police Station Khawaza Khela, Swat wherein he is charged for an offence of carnal intercourse against the order of nature with a boy named Habibullah aged about 4‑5 years.

3. Mr. Jan Muhammad Khan, Advocate appearing on behalf of Mr. Shah Jehan Khan, learned counsel for the accused‑petitioner pressed the bail application on the grounds:‑‑

(i) that the accused‑petitioner is of tender age being under 16 years and as such entitled to the concession of bail under first proviso to section 497(1) Cr.P.C. He placed reliance on a case Shakeel Ahmad v. State 1983 P Cr. L J 1942;

(ii) that the petitioner is a student and is studying in 10th Class; and

(iii) that the alleged offence would fall under section 7 and not under section 12, or for that matter, under section 8 of the Ordinance.

4. In respect of his first submission the learned counsel for the petitioner has referred to a certificate issued by the Medical Superintendent, Saidu Group of Hospitals, Saidu Sharif, Swat wherein his age has been determined as 15/16 years. A reference to the report of earlier examination of the accused‑petitioner by a doctor in the Civil Hospital Madyan, however indicates his age as about 18 years.

5. Relevant rortion of section 497(1) and the first proviso thereto read as under:‑‑

"When any person accused of any non‑bailable offence is arrested or detained without warrant by an officer‑in‑charge of a police‑station, or appears or is brought before a Court, he may be released on bail, but he shall not be so released if there appear reasonable grounds for believing that he has been guilty of an offence punishable with death or imprisonment for life or imprisonment for ten years.

Provided that the Court may direct that any person under the age of sixteen years or any woman or any sick or infirm person accused of such an offence be released on bail."

A plain reading of the above would reveal that it envisages a positive finding about the age of an accused person as "under the age of 16 years". It does not permit of any ambiguity or proximation in the matter of age for the purpose of releasing an accused person charged for a non‑bailable offence.

6. The case‑law referred to above by the learned counsel for the petitioner would also be of not much assistance to him inasmuch as the case is distinguishable from the facts of the present one in that, in the reported case, the accused‑petitioner was presumably found positively less than 16 years of age. In this context of the matter I hold that since from the record available it cannot be said with any amount of certainty that the accused‑petitioner is positively under the age of 16 years, the benefit of first proviso to section 497(1) Cr.P.C. cannot be extended to him.

7. Again the factum of his being a student of 10th Class will have no bearing on the fate of this bail application for the reason that while he is charged with an offence entailing moral turpitude, by no means this situation will lessen the criminality of the accused‑petitioner. Such plea can however be advanced at the stage of the trial as a mitigating circumstance for such benefit as the learned trial Court finds permissible under the law. Similarly regarding the third contention of the learned counsel pertaining to the nature of offence as to under which provision of the Ordinance the offence of the accused‑petitioner shall fall, is a question to be determined ultimately at the trial of the accused in the light of 1 such evidence as is adduced by the parties.

8. For the foregoing reasons, I find no merit in this application which is hereby rejected.

H.B.T./646/P Bail application rejected.