1995 P Cr (PLP)

Abdul Aziz Khan Niazi for Petitioner. Sikandar Tariq Ansari for the State. Muhammad Ashfaq aged 10 years acquired his religious education in Madrassa Taleemul Qur'an Sultan Nagar. Muhammad Nazir petitioner --accused was also a student therein. On 29-8-1994 the students were reading when the electricity gone out of order. Muhammad Nazir petitioner-accused allured Muhammad Ashfaq and took him to the stadium side. Muhammad Ajmal P.W. intimated Abdul Razzaq father of Muhammad Ashfaq minor who alongwith Shafiq Ahmad and Muhammad Akbar searched for his son. 3n a vacant plot of the stadium they saw Muhammad Nazir and Muhammad Ashfaq both in naked condition. Muhammad Ashfaq minor told his father Abdul Razzaq that Muhammad Nazir attempted to commit sodomy upon him. Muhammad Nazir petitioner was overpowered who was berg taken to the police station. His co-accused Taj Muhammad arrived there armed with a Sots and injured Abdul Razzaq. F.I.R. No.281, dated 30-8-1994 was registered at Police Station Makhdoom Rashid under Article 12 of the Offence of Zina (Enforcement of Hudood) Ordinance, 1979.

2. The petitioner moved the Additional Sessions Judge, Multan for his admission to bail. Abdul Razzaq complainant got sworn in the affidavit exonerating Muhammad Nazir petitioner which fact is mentioned in order, dated 12-3-1995 passed by the lower Court on which date the bail application was dismissed. Hence this petition with the same desire.

3. I have heard the learned counsel for the petitioner as well as the learned State counsel and gone through the record before me. In my view the attraction of Article 12 of the Offence of Zina (Enforcement of Hudood) Ordinance, 1979, is a question of further inquiry. Muhammad Ashfaq victim was not removed to some considerable distance who was removed to some safe place according to the accused a it cannot be expected that is the mosque where the students were studying the nefarious act could be committed. The removal of the victim to such a short distance may not be considered as abduction .for the purpose of sodomy as contemplated by Article 12 of the Offence of Zina (Enforcement of Hudood) Ordinance, 1979" It is a case of attempt of commission of sexual intercourse against the order of nature. No doubt the Medical Officer saw the injuries on the knees and the stomach of Muhammad Ashfaq victim but no marks were seen on the anus or around the same. In this view of the matter the attraction of section 377, P.P.C., which still holds water in the field for the purpose of its application, is held to be a question of further inquiry. Consequently I hold that the learned State counsel has not been able to convince me that it is not a case for admission of this petitioner to bail.

4. Considering it to be a fit case I accept this application and admit Muhammad Nazir to bail in the sum of Rs.20,000 (Rupees twenty thousand only) with one surety in the like amount to the satisfaction of the learned Sessions Judge, Multan. N.H.Q./M-2506/L Bail allowed.