Hizbullah vs State S — 2024 MLD 1962 PESHAWAR-HIGH-COURT

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Hizbullah VS State S. 497---Penal Code (XLV of 1860), Ss. 377 & 34---Khyber Pakhtunkhwa Arms Act (XXIII of 2013), S. 15---Juvenile Justice System Act (XXII of 2018), S. 6(3)---Unnatural offence, common intention, possession of unlicensed weapon---Bail, grant of---Juvenile accused---Petitioners were charged for committing sodomy with the complainant on gun point---Undeniably, the petitioners had been directly charged for the offence of sodomy upon the victim---Medical report of the victim was clear inasmuch as it showed a wedge sloped tear on anterior wall of anal canal, which prima facie indicated that penetration had taken place, which was enough for the commission of the offence---Mere fact that the Forensic Science LaboratoryReport of the swabs was awaited was not sufficient to help create a scope of further inquiry---Delay in such like cases did not matter much for the simple reason that the honour of the victim and his family was involved---No one would ordinarily falsely level the charge of such an offence to invite social stigma such an offence tends to carry---An additional ground was the putting of the victim in fear of instant death through the use of the pistol by the petitioners---Thus, on merit, there existed a prima facie case against both the petitioners, therefore, they were not entitled to the concession of bail---However, petitioners raised the plea of juvenility as well---Medical report of the petitioner "S" reflected his age to be about 17 years, while the medical report of petitioner "H" revealed that he was about 16 years of age---Thus, both the petitioners were juveniles, as defined in S.2 of the Juvenile Justice System Act, 2018---However, no effort under S.8 of the Act, including the Judicial Magistrate before whom the petitioners were produced under S.167, Cr.P.C., was made for determination of their juvenility---In the cards of arrest, the petitioner "H"was shown as 15/16, and the petitioner "S" as 16/17 years old---Court, thus, had to consider the cards of arrest and the medical reports as available material for the purpose of tentative assessment---Under subsection (3) of S.6 of the Act, for the minor and major offences a juvenile offender shall be treated as if accused of committing a bailable offence---However, under subsection (4) of the same provision, in the case of a heinous offence (carrying capital punishment), a juvenile over sixteen years of age may not be granted bail if there are reasonable grounds establishing prima facie connection with the alleged offence---Case of a juvenile offender of 16 years or below would be covered by subsection (3) of S.6 of the Act---For such reason, the petitioner "H" being 16 years old, stood entitled to bail on the ground of juvenility---Petitioner "S" being 17 and as such above 16, was refused bail being charged for a major offence---Petition was partially allowed.

Hizbullah vs State S — 2024 MLD 1962 PESHAWAR-HIGH-COURT

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