2008 PLP 356 (MLD)

IJAZ AHMAD CHAUDHRY, J.

Through this petition under section 497(5), Cr.P.C. the petitioner seeks cancellation of bail granted to respondent No.1 by learned Additional Sessions Judge, Pakpatton Sharif vide order, dated 9-6-2007, in a case F.I.R. No. 195 of 2007, dated 26-5-2007, registered under section 377, P.P.C. at Police Station City Pakpattan Sharif on the application of Ghulam Farid, the petitioner/complainant.

2. The brief allegation against the respondent-accused as alleged in the F.I.R. is that on 10-3-2007 at about 7-30 a.m. he along with his co-accused had committed sodomy with Nazir Farid, younger brother of the complainant/petitioner.

3. The learned counsel for the petitioner has contended that respondent No.1 has been allowed pre-arrest bail by the learned Additional Sessions Judge, Pakpattan Sharif merely on the ground of minority vide order, dated 9-6-2007; that there was no enmity or grudge to falsely implicate the respondent-accused in this case; that the sodomy had been committed with the victim and in spite of that the respondent-accused has been granted pre-arrest bail, which is liable to be cancelled as the report of Chemical Examiner is positive, which corroborates the prosecution version.

4. The learned counsel for the respondent-accused contends that the prosecution version has been found doubtful during the investigation and the respondent-accused was declared innocent; that the learned Additional Sessions Judge has rightly allowed bail to the respondent-accused.

5. I have heard the arguments advanced by the learned counsel for the parties and perused the record with due care and caution.

6. During the investigation, the respondent-accused has been declared innocent and placed in Column No.2. According to the Medico-legal Report, there was no redness around the anus of the victim as observed by the Doctor. On the other hand according to the prosecution version, the sodomy had been committed with victim by six persons. The possibility of falsely implicating the innocent persons by widening the net cannot be ruled out. It is also noteworthy that the occurrence had allegedly taken place on 10-3-2007, while the medical examination of the victim was conducted on 11-3-2007 after 32 hours and whether semen could be detected in the anus with such delay during which the victim must have passed stools is a question of further inquiry. There is contradiction between the medical evidence and the ocular account. According to the Medico-legal Report, no signs of violence were found on the person of victim, which creates doubt in the prosecution version. For the time being the case against the petitioner is one of further inquiry. Nothing was to be recovered from the respondent accused and no useful purpose will be served by sending him in jail when the report under section 173, Cr.P.C. has already been submitted in the Court. The learned Additional Sessions Judge has rightly allowed the bail before arrest to respondent-accused and no ground is made out for cancellation of the same. Resultantly, this writ petition being devoid of any merit is dismissed. H.B.T./G-9/L Petition dismissed.