STATE Versus MUHAMMAD YUSUF

ORDER

1. This is a reference made by the District Criminal Court, Muzaffarabad in a case of challan for the commission of the offence of unnatural lust. It was alleged that a small boy of about 6 years, Masud Ahmed by name was kidnapped by the accused respondent for subjecting him to the unnatural lust. Allegedly incident took place on 8-7-1979 when the boy was going towards his sister who had gone to a spring at some distance for washing clothes. The boy while on his way to the spring was kidnapped by the accused respondent and taken to his house where sodomy i.e. unnatural lust was forcibly committed on him who on penetration of the male organ into his anus by the accused respondent suffered severe pain resulting in hue and cry attracting Manzoor Ahmed his brother and some others to the scene of occurrence who saw the accused respondent committing offence of unnatural lust. On seeing the witnesses the accused respondent ran away from the sane of occurrence. The boy was then taken to police station where a report Exh. P.A. was lodged by Manzoor Ahmed and a case was accordingly registered though under a wrong section. After the investigation, the case was challaned against the accused before the District Criminal Court under section 377, A. P. C. read with section 12 of the Offence of Zina (Enforcement of Hudood) Ordinance, 1979 (hereafter referred to as the Ordinance). Two sections of the said Ordinance namely 6 and 10 were superfluously added to the charge. These superfluous sections deal with the offence of 'Zina-bil-Jabar' and 'Zina'. Obviously no reference could legally be made by the Sessions Judge to these Sections while dealing with the matter of bail in relation to offence of unnatural lust. No distinction could be drawn by the Sessions Judge between the offence of unnatural lust and offences of Zina-bil-Jabar and Zina. How offences of 'Zina-bil -Jabar' and 'Zina' could be brought within the ambit of unnatural lust. The accused-respondent moved an application for his bail before the trial Court. The trial Court consists of two members namely the District Qazi and the Sessions Judge. The Sessions Judge expressed his opinion in favour of grant of bail to the accused while the District Qazi refused bail to the accused. Owing to difference of opinion between the two learned members of the trial Court in matter of bail instant reference was made to this Court. The Sessions Judge accepted the bail application of the accused on the ground that in view of a proviso added to section 497, Cr. P. C. to the effect that no accused could be detained for a period exceeding one year if the offences for which he is charged is not punishable with death and the trial of the case is not yet concluded. According to the Sessions Judge the penalty provided for the offences allegedly committed by the accused, no death penalty was provided and so he taking advantage of the proviso of the above description granted the bail to the accused. The second part of this proviso relates to the offences for which penalty of death is provided and in that case the detention of the accused cannot legally be allowed beyond a period of two years, if the trial is not concluded within the period prescribed from the date of his detention. This proviso can `be resorted to by an accused if no delay tactics are found on his part to prolong the case. Here in this case accused-respondent was arrested on 11-7-1979.

2. Penalty for the offence under section 12 of the Ordinance is also death provided by law and so the Sessions Judge was wrong to say that no penalty of death was provided for any of the offences allegedly committed by the accused. The finding of the Sessions Judge is fallaciously given in respect of grant of bail. On the other hand, the District Qazi, I think was able to appreciate the application of the relevant proviso of section 497, Cr. P. C. which was misapprehended and used thereof 'by the learned Sessions Judge in favour of the accused. One may differ with certain interpretation of law made by the District Qazi in relation to the matter of bail and that may be even wrong but he was very well able to write his order for rejection of bail to the accused. Unsoundness of mind was also made a ground to let go the accused but no report with regard to unsoundness of his mind was forthcoming. The District Qazi has labeled plea of unsoundness of mind on the part of the accused just to find a way to prolong the proceedings so as to be taken by the Court and that was just aback excuse for acceptance of bail. The father of the accused who was present before the Court has stated that the accused-respondent is no longer suffering from any unsoundness of mind. He is now very well, he says. This is in respect of the health of the accused-respondent.

3. In the circumstances above, the opinion of the learned Sessions Judge cannot be affirmed and as such his order oh grant of bail to the accused is hereby cancelled, and that of the District. Qazi in rejecting the bail of the accused is allowed to st4ind. The reference is answered accordingly.

4. Order accordingly.