1994 P Cr (PLP)

PLD1972SC81andPLD1972SC277 ref. Tariq Shamim for Petitioner. Khuda Dad Khan Burki for the Complainant. Malik Muhammad Aslam for the State. Date of hearing: 9th January, 1994. The petitioner is one of the accused in a case registered vide F.I.R. No.82/93, dated 21-8-1993 registered at Police Station Kundian, District Mianwali, under section 12 of Offence of Zina (Enforcement of Hudood) Ordinance, 1979 and sections 377 and 292, P.P.C.

2. According to the F.I.R., in brief, the three accused are alleged to have committed sodomy with the victim, Aman Ullah Khan, after the present petitioner had taken him to the place of occurrence on a motor-cycle on the pretext of taking him to Kabaddi match.

3. The learned counsel for the petitioner, the State and the complainant were heard at length in respect of the contentions raised herein. Admittedly, the two co-accused of the petitioner, namely, Sajjad and Javed, were allowed bail by the learned lower Court on the ground that the medical evidence and the Chemical Examiner's report, being negative, did not support the case of the prosecution but the learned lower Court had nevertheless denied the bail to the present petitioner with the observation that the provisions of section 12 of Offence of Zina (Enforcement of Hudood) Ordinance, 1979, were attracted only against the present petitioner as he had taken the victim to the place of occurrence on his motor-cycle. However, a perusal of the F.I.R. clearly established that the alleged victim had accompanied the petitioner of his own free will and that as such the case against the petitioner in the context of the allegation contained under section 12 ibid is one of the further inquiry. Further, taking into consideration that the prosecution had not moved for the cancellation of bail allowed to the two co-accused on the ground of medical evidence and the report of Chemical Examiner being in conflict with the prosecution version as stated above, the rule of consistency demands that the petitioner be dealt with in the same manner under the facts and circumstances of the case that are equally relevant in his respect. Further taking into consideration that the bail can neither be denied as punishment nor the law can be stretched in favour of the prosecution as held by the Honourable Supreme Court of Pakistan in P L D 1972 SC 81 and P L D 1972 SC 277, it 1b hereby observed, without commenting on the merits of the case, that the case of the petitioner is duly covered under the provisions of subsection (2) of section 497, Cr.P.C. and as such he is entitled to bail. Furthermore, the petitioner is neither a previous convict nor a hardened criminal and he is no longer required by the police.

4. Therefore, the petitioner is hereby allowed bail in the sum of) Rs.30,000 with two sureties each in the like amount to the satisfaction of the A.C./Duty Magistrate, Mianwali. N.H.Q./M-1388/L Bail allowed.