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2010 Y L R 1960

[Karachi]

Before Shahid Anwar Bajwa, J

ZAHIR HYDER---Applicant

Versus

THE STATE---Respondent

Bail Application No. 1206 of 2009, decided on 13th November, 2009.

Criminal Procedure Code (V of 1898)---

----S.497(1) first proviso---Penal Code (XLV of 1860), Ss.376/377/511---Juvenile

Justice System Ordinance (XXII of 2000), Ss.2(b) & 10(7)(c)---Attempt to rape and
sodomy---Bail, grant of---Accused, prima facie was less than 16 years at time when
alleged offence was committed---As per challan, the offence against accused who
was behind the bars for more than 4 months, was under Ss. 376/377/511, P. P. C.,
which was an attempt for which punishment was half---Under provisions of S.10(7)
(c) of Juvenile Justice System Ordinance, 2000, child was a person who had not
attained age of 18 years, if he had been behind the bars for more than four months,
except in cases punishable with death or imprisonment for life, would be entitled to
bail---Accused was admitted to bail, in circumstances.

Mukhtar Ahmad and 3 others v. The State 1999 PCr.LJ 1107; Aziz Khan and another v.
The State and another 2004 PCr.LJ 490; Taj-ud-Din and another v. The State and
another 2009 YLR 49; Muhammad Nadeem v. The State 1999 PCr.LJ 880; Afsar
Zamin v. The State PLD 2002 Kar. 18; Alamzeb and 2 others v. Muhammad Sohail and
another 2003 YLR 398; Ghulam Qasim and others vs. The State 1996 SCMR 1087;
Asghar Ali v. The State 2008 YLR 1986; Muhammad Sarwar v. Akhtar and others
2006 YLR 2345; Jalal Din v. The State 1986 PCr.LJ 1003 and Raees Azam and 2
others v. The State and another 1995 PCr.LJ 541 ref.

M. Nawaz for the Applicant.

Imtiaz Ali Jalbani, A.P.-G. for the State.

ORDER

SHAHID ANWAR BAJWA, J.---On 12-7-2009, F.I.R-. No. 246/2009 was lodged at

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Police Station Quaidabad Karachi by Mst. Chanda Bibi. In the F.I.R. complainant
stated that on 2-7-2009 at about 3-00 p.m. when she was in house along with her
children including her 7 years old daughter, Fatima, the present applicant came to her
house and stated that his grandmother was calling Fatima and he took Fatima with him.
After some time complainant went to house of the applicant and stated that she
knocked at door. Grandmother came out and when inquired about Fatima grandmother
told that she was not there and closed the door. Complainant made loud noises and
again banged at the door, as a consequence whereof the applicant opened the door and
stated Fatima would come out in a minute. When Fatima came out, she was crying and
she was wearing Shalwar inside out and when complainant, undid Shalwar, she saw
blood there. Complainant informed persons of locality and F.I.R. was lodged. Medical
examination of Fatima was conducted. The following opinion was rendered by the
doctors.

"From the above medical examination, I am of the opinion that there was an
attempt for the sexual assault as well as anal intercourse"

2. Medical report also says that Hymen was intact and there were abrasions on rectum.
Applicant was arrested on 2-7-2009. Bail application was filed in the trial Court which
was rejected by the trial Court vide order dated October 26, 2009. Thereafter, this bail
application has been filed.

3. Learned counsel for applicant made the following submissions:

(i) Although, it was stated by the complainant in F.I.R. that when she removed
Shalwar of Fatima she saw blood oozing but no such statement was made by
her in under section 161 Cr.P.C.

(ii) According to Form "B" issued by NADRA applicant's date of birth is

11-11-1993. Therefore, on the date of incident applicant was less than 16 years
of age and therefore is entitled to the benefit of first proviso to subsection (1) of
section 497 Cr.P.C.

(iii) Complainant has given statement on Oath submitted in the Court below
whereby she has forgiven the applicant.

(iv) In any case applicant is a child as defined under section 2(b) of the
Juvenile Justice System Ordinance, 2000 and therefore he is entitled to bail in
terms of section 10(7)(c) of that Ordinance as the applicant has been behind
bars for more than four months. Learned counsel for applicant has relied upon
Mukhtar Ahmad and 3 others v. The State 1999 PCr.LJ 1107, Aziz Khan and
another v. The State and another (2004 PCr.LJ 490) Taj-ud-Din and another v.
The State and another 2009 YLR 49), Muhammad Nadeem v. The State 1999
PCr.LJ 880), Afsar Zamin v. The State (PLD 2002 Karachi 18), Alamzeb and 2
others v. Muhammad Sohail and another (2003 YLR 398), Ghulam Qasim and
others v. The State (1996 SCMR 1087), Asghar Ali v. The State (2008 YLR

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1986), Muhammad Sarwar v. Akhtar and others (2006 YLR 2345), Jalal Din v.
The State (1986 PCr.LJ 1003) and Raees Azam and 2 others v. The State and
another (1995 PCr.LJ 541).

4. Learned Assistant Prosecutor made the following submissions:-

(v) That statement as to date of birth contained in the documents issued by

NADRA are not reliable. Therefore, in order to determine age of the applicant
he should be sent for medical examination.

(vi) Though mother of victim has forgiven the applicant but victim has not
forgiven him.

(vii) There is direct and sufficient incriminating material.

(viii) The offence, is a non-bailable offence. Learned A.P.-G. therefore opposed

to grant of bail.

5. I have considered submissions made by the learned counsel and have also gone
through record as well as the case-law.

6. First is the question as to the age of applicant. The applicant has produced copy
of Form "B" issued by National Data Base and Registration Authority (NADRA)
on 5-6-2006 in which date of birth of the applicant is stated as 11-11-1993.
Applicant has also produced a copy of Admission Form of Secondary School
Examination Part-I Annual 2009, wherein his date of birth is also mentioned as
11-11-1993. In presence of these two documents, I do not think there is need to
send applicant for medical examination. No one would falsely state his date of birth
and probably much earlier in school because he wanted to commit a crime in 2009
and got benefit of proviso to subsection (1) of section 497 Cr.P.C. Law is trite and
clear; benefit of doubt even at the bail stage must be given to the accused.

7. First proviso of subsection (1) to section 497 Cr.P.C. is in the following words:---

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

8. On the date when alleged offence was committed, prima facie, applicant was less
than 16 years of age but today i.e. when bail application is being heard he is more
than 16 years of age. In my opinion, for the purpose of proviso to subsection (1) of
section 497, Cr.P.C. material date would be date of offence. Therefore, in my
opinion applicant is entitled to the benefit of proviso of subsection (1) to section
497 Cr.P.C.

9. In Afsar Zamin's case age of accused according to police was between 17 and 18

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years. It was held by this Court that such opinion of the police ex facie was
sufficient for the purpose of determination of age.

10. Section 2(b) of the Juvenile Justice System Ordinance 2000 provides as under:-

"2. Definitions---

(a) ..

(b) "child" means a person who at the time of commission of an offence has
not attained the age of eighteen years.

11. Section 10 (7)(c) Juvenile Justice System Ordinance 2000 provides as follows:-

"(7) Notwithstanding anything contained in the Code and except where a

Juvenile Court is of the opinion that the delay in the trial of the accused has
been occasioned by an act or omission of the accused of any other person
acting on his behalf or in exercise of any right or privilege under any law for
the time being in force, a child who, for commission of an offence, has been
detained, shall be released on bail.

((a)

(b) .

(c) who, being accused of any offence not punishable with death, or
imprisonment for life, has been detained for such an offence for a
continuous period exceeding four months and whose trial for such an
offence has not concluded".

12. Above provision clearly indicates that child for the purpose of the Juvenile
Justice System Ordinance 2000 is a person who has not attained age of 18 years
and, if he has been behind bars for more than four months (except in cases
punishable with death or imprisonment for life) would be entitled to bail. As per
challan, the offence is under sections 376/377/511 i.e. it is an attempt for which
punishment is half.

13. In Alamzeb's case where offence as alleged was that of Zina. It was observed
by the honourable Judge as under:

"Now following the above provision the present case is to be viewed in the
light of the above text. The history of the case is that, the petitioners were
arrested in the case on 18-7-2002 and since then they are in the judicial
lock-up and their trial has not been concluded as yet meaning thereby that
they are behind the bar exceeding four months. In the circumstances of the
case the maximum punishment particularly in the cases of minors is always

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to be avoided because of tender age, childhood, his welfare future and the
reformation being the duty of the State. Section 10 (7) (c) of the Juvenile
Justice System Ordinance 2000 in the present scenario is very much
attracted thereby it is given to understand that where in case of juvenile an
accused person of any offence not punishable with death or imprisonment
for life is detained for a continuous period exceeding four months and
whose trial has not been concluded, shall be released on bail."

14. In Ghulam Qasim's case age according to school leaving certificate was relied
upon by the honourable Supreme Court. Therefore, on this ground applicant is
entitled to bail.

15. The victim is a girl of tender years, she is only 7 years old. Attempt has been
alleged to have been made both for sexual assault as well as anal intercourse. There
cannot be conduct more vile than it. I do not think forgiving by mother should be
given any consideration for offences of this nature. However, the Court cannot lose
sight of the fact of tender age of the accused who has been behind the bars for more
than 4 months. Since section 10 (7)(c) of the Juvenile Justice System Ordinance,
2000 provides that notwithstanding anything contained in the Criminal Procedure
Code that accused is to be enlarged on bail if he is a child and has been behind bars
for more than 4 months,(except for the exceptions provided therein). I, therefore,
admit the applicant to bail for sum of Rs.2,00,000 with one surety and P.R. Bond in
the like amount to the satisfaction of the trial Court.

H.B.T./Z-25/K Bail granted.

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