2022 PLP 958 (MLD)

AAMER FAROOQ, J.

The petitioner [Nuaman Husain] seeks bail after arrest in case FIR No.332, dated 29.06.2021, under sections 377 and 377-B, P.P.C., Police Station Karachi Company, Islamabad,

2. Case of the prosecution against the petitioner is that on the complaint of respondent No.2, who is father of one Momin Abbasi, aged 13 year old, the above FIR was registered, wherein it was alleged that the petitioner along with co-accused got the nude videos of his son, who then blackmailed him and also sexually abused him.

3. The petitioner applied for bail after arrest which was dismissed by the learned Additional Sessions Judge (West), Islamabad, vide order dated 16.07.2021, hence the petition.

4. Learned counsel for the petitioner, inter alia, contended that there is a considerable delay in filing of the FIR inasmuch as the alleged occurrence is of 05.01.2021, whereas FIR has been lodged on 29.06.2021. It was contended that medical report clearly divulged that there is no evidence of any sexual intercourse and hence the victim looks fit. It was contended that the FIR is based on mala fide and case against the petitioner is one of further inquiry.

5. Learned State Counsel along with counsel for the complainant, inter alia, contended that initially another FIR was lodged against the petitioner i.e. FIR No.02/2021, dated 05.01.2021, under the Prevention of Electronic Crimes Act, 2016 by Federal Investigation Agency (FIA) and challan/report under section 173, Cr.P.C., in the same has been furnished with learned Trial Court. It was contended that during the course of investigation, in the said FIR, there was evidence of offence under sections 377-A and 377-B, P.P.C., hence the complainant lodged the FIR with respect to the referred offence as well because of the legal opinion that both the matters under PECA and P.P.C. cannot be proceeded together. It was contended that under section 377-A, P.P.C., there need not be physical penetration in order to constitute the offence of sexual abuse.

6. Arguments advanced by the learned counsel for the parties have been heard and the documents placed on record examined with their able assistance.

7. The petitioner is implicated with the offence mentioned hereinabove. The maximum punishment for the offence under section 377-B, P.P.C., is 07-years imprisonment and fine. The said offence does not fall within the prohibitory clause of section 497, Cr.P.C and where such is the case, grant of bail is a rule and refusal is an exception. Reliance is placed on Tariq Bashir and others v. The State (PLD 1995 SC 34). In the referred judgment, the august apex Court laid down exceptions in which even if the offence does not fall within the prohibitory clause, bail can still be declined. One such exception is repetition of the offence and other is tampering with the evidence. The petitioner is implicated with other accused and they used to share videos/clips of the victim on Whatsapp groups and/or Facebook. There is likelihood if the petitioner is enlarged on bail, he might commit the offence again.

8. The fact that there is delay in lodging of the FIR is inconsequential inasmuch as initially the FIR was lodged with the FIA (FIR No.02/2021), offence under section 377, P.P.C. was added and it was only when legal opinion was sought and it was opined that the offence under Pakistan Penal Code (P.P.C.) shall be triable and proceeded separately; the present FIR was lodged.

9. Even otherwise, under section 377-A, P.P.C, in order to constitute offence of section 377-B, P.P.C., no actual penetration is required and the offence is committed even where there is stroking, caressing, exhibitionism, etc. and the modes exhaustive. Moreover, report by the Director, FIA is categoric that offence under section 377, P.P.C. has been committed.

10. For what has been stated above, the instant petition is without merit and is accordingly dismissed. The learned Trial Court is directed to conclude the trial within a period of two months from the date of receipt of this Order. SA/58/Isl. Bail declined.