1995 PLP 1826 (MLD)

‑‑‑‑S.497(2)‑‑‑Bail‑‑‑Affidavits of eye‑witnesses‑‑‑If affidavits are filed by eye witnesses exculpating the accused from the commission of the crime, case of prosecution becomes that of further inquiry falling under S.497(2), Cr.P.C. which is a legal ground for the admission of an accused to bail.‑‑‑[Affidavit]. Allah Bakhsh v. Nazar Hussain Shah and another 1979 SCMR 137 ref. Syed Munawar Hussain Naqvi for Petitioner. Z. A. Bukhari for the State. Date of hearing: 13th July; 1995. Sajjad Ahmad complainant aged 13 years got recorded F.I.R. No.106 dated 25‑3‑1995 at Police Station Civil Lines, Bahawalpur under Article 12 of the Offence of Zina (Enforcement of Hudood) Ordinance, 1979 and under section 377, P.P.C. with the allegation that on 24‑3‑1995 at 11 a.m. he was allured by Muhammad Akram petitioner‑accused to Dera Bakha on the pretext to see the `Maila'. At that time Muhammad Akram was with another person named as Ghulam Mustafa. They took him to Basti Mangwana where they passed the night in a room. Muhammad Akram petitioner is said to have committed forcible sexual intercourse against the order of nature with Sajjad Ahmad complainant during the night. On the next morning Muhammad Akram attempted to perform the same act of Sajjad Ahmad complainant is said to have attracted Muhammad Ashiq and Abdul Khaliq P.Ws. residents of Mauna Mangwana. Seeing them Muhammad Akram petitioner and Ghulam Mustafa are said to have made good their escape. The P.Ws. sent him to Bahawalpur in a bus. On the arrival of his father Wahid Bakhsh the matter was reported to the police.

2. The Medical Officer examined Sajjad Ahmad. The anal swabs have been found to be positive by the Chemical Examiner. Muhammad Akram was arrested who has been declared as potent by the medical witness. The bail plea of Muhammad Akram has been rejected by the lower Court who has filed this petition to try his luck to be admitted to bail.

3. I have heard the learned counsel for the petitioner as well as the State Counsel and gone through the record before me. Both Muhammad Ashiq and Abdul Khaliq P.Ws. are present before me who have submitted their respective affidavits which form part of this file. It is mentioned in their statements recorded under section 161 of the Criminal Procedure Code that they had gone to Basti Mangwana in connection with their business when they heard the alarm. However, according to them they are the residents of Mauza Sahlan, Tehsil and District Bahawalpur. In their respective affidavit the P.Ws. have got sworn in that they are not the residents of Basti Mangwana and that they are not aware of the facts of the case. They have owned their respective affidavits before the Court today. At this stage it is proper to express that Wahid Bakhsh father of Sajjad Ahmad complainant/victim is present who has verbally expressed that a compromise has been effected as in a Punchayat Muhammad Akram has been declared as innocent and that he is satisfied with the decision of the Punchayat.

4. No doubt, as rightly expressed by the learned State Counsel, an offence of the present nature is detestable as well as heinous. However, the law has to take its course. Both the witnesses Muhammad Ashiq and Abdul Khaliq A do not support the prosecution case who have submitted their respective affidavit and have owned the same before this Court today. According to the dictum enunciated in Allah Bakhsh v. Nazar Hussain Shah and another (1979 SCMR 137) if the affidavits are filed by the alleged eye‑witnesses exculpating the accused from the commission of the crime the case of the prosecution becomes that of further inquiry falling under section 497(2) of the Criminal Procedure Code which is a legal ground for the admission of an accused to bail. After the affidavits of the aforesaid eye‑witnesses, there is the solitary statement of the complainant about his removal from Bahawalpur to Basti Mangwana for the purpose of commission of sodomy upon him and thereafter the practical role of commission of sexual intercourse against the order of nature. No doubt the report of the Chemical Examiner has been received in the positive, but in view of the personal appearance of Wahid Bakhsh father of Sajjad Ahmad complainant who has expressed about the inception of compromise on the basis of decision of Punchayat it can safely be held that it is C better to admit Muhammad Akram petitioner to bail than to retain him in jail. I, therefore, do not agree with the learned counsel for the State that this application may be dismissed.

5. For what has been said above, I hold that it is a fit case for the admission of the petitioner to bail. Consequently he is admitted 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 Sessions Judge/Duty Sessions Judge, Bahawalpur. N.H.Q./M‑2493/L Bail allowed.