MUHAMMAD IQBAL Versus THE STATE

ORDER

Muhammad Iqbal, the petitioner has sought for post‑arrest bail in case F.I.R. No.402, dated 1‑12‑2002 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 Dunyapur, District Lodhran.

2. Briefly the facts of the prosecution case as contained in the F.I.R. are that on 30‑11‑2002, Muhammad Akbar 7/8 years old, the son of the complainant Muhammad Yasin had gone to grocery shop of Muhammad Iqbal (petitioner) to make purchases therefrom. He (petitioner) forcibly subjected him to sodomy there.

3. It has been contended on his behalf that he has falsely been roped in that his father Abdul Khaliq had brought civil suit against Abdur Rehman, the grandfather of the alleged victim Muhammad Akbar; that there is one day's delay in lodging the F.I.R.; that there is two days delay in his (Muhammad Akbar) medical examination; that section 12 of the Offence of Zina (Enforcement of Hudood) Ordinance No.VII of 1979 is not made out in the instant case as he neither had kidnapped the said boy for the purpose of satisfying his unnatural lust With him nor taken him away anywhere for that purpose; that the report of Chemical Examiner has as yet not been received; that he has been detained continuously for a period exceeding six months while his trial as yet has hot commenced even and hence he is entitled to be released on bail in view of subsection 7(b) of section 10 of the Juvenile Justice System Qrdin4nce (No.XXII of 2000), 2000; and that, he is previous non‑convict.

4. On the other hand, the learned counsel for the State has opposed the petition on the ground that he has subjected a little boy to sodomy; that the delay in lodging the F.I.R. and the medical examination of the victim boy stands explained from the facts and circumstances of the case and that the offence under section 12 of the Offence of Zina (Enforcement of Hudood) Ordinance No.VII of 1979 is made out from the facts and circumstances of the case. He, however, has conceded that as per police record his age is about 17/18 years while as per his MLR 16 years and that he has continuously been detained for a period exceeding six months and so far his trial has not commenced even.

5. I have carefully considered the submissions made by the learned counsel for the parties with the help of available record.

6. Allegedly he has subjected the victim boy to sodomy in his shop. He according to the copy of his school leaving certificate, had born on 9‑10‑1987. He thus, at the time of alleged incident was about 15 years, one month and 21 days old. As per his MLR, he was aged about 16 years. It may be mentioned here that in the record of the police, his age has been mentioned as about 17/18 years. This may be a tentative assessment of his age and not exact one while as compared to the same, his school leaving certificate and the MLR are more preferable as regards the question of his age.

7. The question of application of section 12 of the Offence of Zina (Enforcement of Hudood) Ordinance No. VII of 1979 in the instant case against him needs serious consideration as he neither had been shown to have kidnapped the victim boy nor taken him away anywhere for the purpose of committing sodomy upon him. While the offence under section 377, P.P.C. is punishable with imprisonment for life or a term which shall not be less than two years nor more than ten years and shall also be liable to fine. He, admittedly has continuously been detained for a period exceeding six months and so far his trial has not commenced even. So from that angle, his case, if at all the prosecution allegation against him may be taken as true as it is, the same apparently is covered under section 377, P.P.C. and not section 12 of the Offence of Zina (Enforcement of Hudood) Ordinance No. VII of 1979. Hence, he is entitled to be released on bail in view of such subsection 7(b) of section 10 of the Juvenile Justice System Ordinance (No. XXII of 2000), 2000.

8. He is stated to be previous non‑convict.

9. In the circumstances, I find him entitled to bail. The petition therefore, is accepted and ht is admitted to bail provided he furnishes bail bonds in the sum of Rs.50,000 (Rupees fifty thousand) with one surety in the like amount to the satisfaction of the learned Sessions Judge, Lodhran.

H.B.T./M‑2028/L Bail granted.