2022 PLP 1447 (SCMR)

SAYYED MAZAHAR ALI AKBAR NAQVI, J.

Through the instant petition under Article 185(3) of the Constitution of Islamic Republic of Pakistan, 1973, the petitioner has assailed the order dated 23.02.2022 passed by the learned Single Judge of the Lahore High Court, Lahore, with a prayer to grant post-arrest bail in case registered vide FIR No. 423 dated 01.11.2020 under sections 377/367-A/337-B, P.P.C. at Police Station Hadiara, District Lahore, in the interest of safe administration of criminal justice.

2. Briefly stated the allegation against the petitioner is that he along with co-accused kidnapped minor Yasir, son of the complainant, and committed sodomy with him.

3. At the very outset, it has been argued by learned counsel for the petitioner that the petitioner has been falsely roped in this case against the actual facts and circumstances. Contends that the FIR was lodged after two days of the occurrence without any justification or explanation. Contends that the medical report of the victim negates the allegation levelled against the petitioner. Contends that the petitioner is behind the bars for the last seventeen months and there is no visible progress in the trial, therefore, he may be released on bail.

4. On the other hand, learned Law Officer assisted by learned counsel for the complainant have defended the impugned order. It has been contended that the petitioner has specifically been nominated in the crime report with a specific allegation of committing sodomy with the complainant's minor son. He brought on record the DNA report to contend that the anal swabs and the stain sections of the T-shirt of the victim matches with DNA profile of the petitioner, which makes the case of the petitioner out of consideration for grant of bail, therefore, he does not deserve any leniency by this Court.

5. We have heard learned counsel for the parties at some length and have perused-the available record with their able assistance. As per the contents of the crime report, the allegation against the petitioner is that he committed sodomy with the minor son of the complainant. However, according to the medical report, which was done promptly after the occurrence, there was no injury mark found around anus; anal bone was normal and was admitting one finger, which seems to be normal. The perusal of the DNA report, which was received on 26.01.2021, shows that sperm fractions of item Nos. 1, 3.1, 3.2, 3.3, 3.4 and 3.5 match with the DNA profile of the petitioner. It further states that the probability of finding an unrelated individual at random in the, population as being a source of the DNA obtained from sperm fractions of item Nos. 3.1, 3.2, 3.3, 3.4 and 3.5 is approximately one in 63 octillion in caucasians. We have carefully gone through the medico legal report and -the result and conclusions drawn by the office of Punjab Forensic Science Agency regarding DNA profile. The approximate ratio regarding the positivity of DNA report, clearly; reflects that it cannot override the Medico-legal report stricto sensu, which was prepared promptly. Keeping in view the medico legal and the DNA reports, as an abundant caution we are of the view that the petitioner has made out a case at this stage and this aspect of the matter would be resolved by the learned Trial Court during trial. The FIR was lodged after two days of the occurrence and no plausible justification has been given for the same. The possibility cannot be ruled out that the FIR was registered with deliberation and consultation in order to frame the petitioner in the picture. However, at this stage, we do not want to comment on this aspect of the matter, lest it may prejudice the case of either of the parties. It is the Trial Court, who would determine the guilt or otherwise of the petitioner after recording of evidence. The petitioner is behind the bars for the last more than seventeen months. We have been informed that until now no witness has been recorded. This Court has time and again held that liberty of a person is one of the most cherished attributes under the Constitution of Islamic Republic of Pakistan, 1973, which cannot be taken away without exceptional foundations. Keeping in view the peculiar facts and circumstances of the present case, no useful purpose would be served by keeping the petitioner behind the bars for an indefinite period till the conclusion of the trial. Taking consideration all the facts and circumstances stated above, we are of the view that the case of the petitioner squarely falls within the ambit of section 497(2), Cr.P.C. entitling for further, inquiry into his guilt.

6. For what has been discussed above, we convert this petition into appeal, allow it and set aside the impugned order dated 23.02.2022. The petitioner is admitted to bail subject to his furnishing bail bonds in the sum of Rs.200,000/- with one surety in the like amount to the satisfaction of learned Trial Court. MWA/S-17/SC Bail granted.