MUHAMMAD NADEEM Versus STATE

ORDER

Muhammad Nadeem a youngster of about 17 years age was arrested on the 21st of August, 1998 in pursuance of a case registered against him vide First Information Report No.313 of 1998, dated the 10th of August. 1998 at Police Station Saddar Wazirabad, District Gujranwala recorded under section 10 of the Offence of Zina (Enforcement of Hudood) Ordinance of 1979 (Ordinance No.VII of 1979) (hereinafter referred to as Ordinance), regarding an occurrence which took place on the 9th of August, 1998 at noon time in an area known as Mohallah Qudrat Ababd which is about 2 miles from Police Station Saddar Wazirabad, District Gujranwala where the first information report was lodged on the next day at 10-00 a.m. by Muhammad Mahmood, brother of Mst. Imrana who was allegedly raped by Muhammad Nadeem petitioner.

2. The offence allegedly committed by the petitioner prima facie would fall under subsection (3) of section 10 of the Ordinance which is punishable with imprisonment for a term which may extend to 25 years and would, thus, fall within the prohibition contained in subsection (1) of section 497 of the Code of Criminal Procedure which provides that bail shall not be granted where there are reasonable grounds for believing that an offence punishable with death or imprisonment for life or imprisonment for 10 years has been committed. It was for this reason that bail was declined to the petitioner by the learned Additional Sessions Judge of Wazirabad.

3. According to the birth certificate of the petitioner which has been placed on the record, the petitioner was 17 years and 7 months old at the time of occurrence.

Section 7 of the Ordinance provides the punishment for Zina or Zina bil-Jabr where the offender is not an adult lays down that:--

"A person guilty of Zina or Zina-bil-Jabr shall, if he is not an adult, be punished with imprisonment of either description for a term which may extend to five years, or with fine, or with both, and may also be awarded the punishment of whipping not exceeding thirty stripes:

Provided that, in the case of Zina-bil-Jabr, if the offender is not under the age of fifteen years, the punishment of whipping shall be awarded with or without any other punishment."

4. The word adult has not been defined in section 7 of the Ordinance. However, section 2 clause (a) of Ordinance defines the word "adult" and reads as follows:--

"Section 2 definitions -- (a) 'adult' means a person who has attained, being a male, the age of eighteen years or, being a female, the age of sixteen years, or has attained puberty. "

5. Read conjunctively it becomes crystal clear that a person being a male who has not attained the age of 18 years will not be punished if found guilty under section 10 subsection (3) of the Ordinance but under section 7 of the Ordinance where the punishment is 5 years imprisonment. Thus, the case of such a person would not fall within the prohibition contained in subsection (1) of section 497 of the Code of Criminal Procedure.

5-A. A similar view has been taken by this Court in the case of Shakeel Ahmad v. The State 1983 PCr.LJ 1942 and Zulfiqar Ali alias Kaka v. The State 1986 PCr. LJ 1013.

6. Resultantly, the petitioner is granted bail provided he furnishes bail bonds in the sum of Rs.50,000 with two sureties each in the like amount to the satisfaction of trial Court.

7. Before parting with this petitioner, I would like express my gratitude for the valuable assistance given at the Bar by the learned counsel for the petitioner and the State. Copy Dasti on payment of usual charges.

N.H.Q./M-942/L Bail allowed.