2000 PLP 1245 (YLR)

Ghulam Haider Al‑Ghazali, Addl. A.‑G. with Shahzad Saleem for the State. A case under section 377, P.P.C. read with section 12 of the Offence of Zina (Enforcement of Hudood) Ordinance, 1979 is registered against the petitioner at Police Station, Ghulam Muhammad Abad, Faisalabad vide F.I.R. No. 316 of 1998, dated 23‑5‑1998 on the ground that the petitioner had committed sodomy upon a child namely Kamran aged 6/7 years.

2. The learned counsel for the petitioner has prayed bail on the ground that complainant Muhammad Yasin who is paternal uncle of the victim Kamran had sworn an affidavit wherein he had admitted that he had no objection if the petitioner was admitted to bail because the police had obtained his signatures on a plain paper after registering the case.

3. Secondly it is contended that the other witness namely Muhammad Rafiq son of Kamal Din had also sworn an affidavit before the Court below that he had no knowledge about the occurrence although he was cited as an eye‑witness. The bail record of the Court below was summoned in which original affidavits of both the deponents were found attached.

4. The learned counsel for the petitioner has contended that after the aforesaid affidavits the case of the petitioner had become that of ~further inquiry. In this respect reliance was placed on Muhammad Akbar v. The State reported as 1987 MLD 3096 (Lahore), Yaseen v. The State reported as 1988 MLD 1959 (Lahore) and Muhammad Ibrahim v. The State reported as 1986 PCr.LJ 1782 (Lahore).

5. The bail is opposed by the learned counsel for the State on the ground that affidavits would have no value at this stage in view of the principle laid down in Naseer Ahmad v. The State reported as PLD 1997 Supreme Court 347 whereby the production of such affidavits were deprecated by the Hon'ble Supreme Court of Pakistan.

6. I have considered the foregoing facts and find that the affidavit of complainant namely Muhammad Yaseen is of no value because he had stated in paragraph No.2 of the affidavit that the victim Kamran was subjected to sodomy for which he had got the case registered. However, after the registration of the case police had obtained his signatures on some plain paper and that the F.I.R. was also not read out to him. This prima facie shows that the case was registered at the report of Muhammad Yaseen complainant as his nephew i.e. victim was subjected to sodomy. The mere fact that the police had obtained his signatures on some plain paper after the registration of case would not be material nor it would be helpful that the petitioner be admitted to bail. In that situation, the statement of the other witness is also of no value in view of the principle laid down by the Supreme Court of Pakistan in the authority cited above. The victim is still supporting the case and as such it cannot prima facie be said that the petitioner is not involved in an offence falling within the prohibitory clause. There being no extenuating ground, the petitioner has no case for bail. The bail petition is accordingly dismissed. N.H.Q./M.A.K./J‑72/L Bail refused.