1998 P Cr (PLP)

M. Fayyaz Ahmad Khawaja for Petitioners. Raja Ghazanfar Ali Khan for the State. Malik Rab Nawaz Noor for the Complainant. A case under section 302/147/149, P.P.C., at Police Station Chauntra is registered against the petitioners on the ground that they committed the murder of Asif Hussain after subjecting him to unnatural carnal intercourse.

2. Learned counsel for the petitioners has submitted that petitioners Nos. l to 3 'are less than 16 years of age and as such, their case would fall under proviso to section 497, Cr.P.C. and they would be entitled to bail; that there is no direct evidence against the petitioners that they had, actually killed the deceased after committing carnal intercourse with him; that the prosecution has only relied upon the last seen evidence without further collecting the incriminating evidence. A number of authorities were relied upon to show that in such-like cases, an offender is entitled to bail being a case of further enquiry.

3. Learned counsel for the State assisted by learned counsel for the complainant has, however, opposed the bail application on the ground that there was no enmity between the parties so as to implicate the petitioners falsely in this case that the petitioners acted callously and took the life of a young man of about 19/20 years of age to satisfy their beastly sexual lust by subjecting him to unnatural carnal intercourse; that the last seen evidence in this case is reliable because all the witnesses are related to the deceased and being the family members residing in the same house, were also natural witnesses to see that the deceased had left the house in the company of the accused persons that the birth certificate produced by Nisar petitioner was not only bogus but false as would be clear from his, original birth certificate ,where his date of birth is, recorded as 30-11-1979; and that lastly the investigation is already complete land the challan is ready for submission to the Court concerned:

4. I have considered the foregoing submissions and find that the prosecution has collected sufficient evidence to link all the petitioners with the occurrence. The last seen evidence is not only reliable but natural. There is no enmity between the parties. The injuries on the person of the deceased on the parts like knees, elbows and buttocks further gives a strong impression that he was subjected to carnal intercourse before he was done to death. The mere fact that the petitioners are stated to be less than 16 years of age is not established at this stage because another birth certificate is also produced-which shows that the date of birth of Nisar Ahmad was 30-11-1979. The Correct date of birth would become clear only when the entire evidence is put into juxtaposition. Though the anal swabs were allegedly negative but the last, worn clothes of the deceased indicate that there were semen stains on them which further speaks for a foul -play.

5. In view of my above discussion, I do not find it a fit case for bail at this stage. The petition is accordingly dismissed. N.H.Q./S-156/L Bail refused.