2021 PLP 1736 (YLR)

MUHAMMAD WAHEED KHAN, J.

Apprehending his arrest at the hands of the local police, petitioner Muhammad Tanveer through this petition seeks pre-arrest bail in case FIR No.365/2020 dated 25.09.2020 registered under section 377, P.P.C. at Police Station City Ahmedpur East, Bahawalpur.

2. The petitioner was booked in the instant crime report with an allegation that on 23.09,2020 in the area of Mauza Wahid Qadir Deena situated within the territorial limits of Police Station City Ahmad Pur East, Bahawalpur, he committed sodomy with one Shehzad, 7, son of the complainant and on the intervention of the PWs, he managed to run away, hence, the instant FIR.

3. After having dilated upon the facts, in the light of arguments advanced by the learned counsel for the parties and having gone through the record, I found that a very serious allegation of sexual assault and committing offence of sodomy has been levelled against the petitioner by the mother of the victim, namely, Salma Bibi in the occurrence, which allegedly took place on 23.09.2020 at 02:00 p.m., whereas the matter was reported to the police with un-plausible delay of two days on 25.09.2020. However, the victim was medically examined in THQ Hospital, Ahmedpur East and a medico-legal certificate was issued, perusal of which reveals that no date and time of medical examination of the victim has been mentioned therein. Anyhow, no tears, lacerations, bruises, abrasion, swellings, hyperemia at the private parts and around the private parts were observed. Even in the column of evidence of bleeding/staining with blood and in column of evidence of seminal stain, the medical officer has written as "Nill". However, the Shalwar/qameez, allegedly worn by the victim at the time of incident and one internal and two external swabs were taken and sent to Punjab Forensic Science Agency (PFSA) to determine the fact whether the victim was subjected to sodomy or otherwise. The report submitted by the Punjab Forensic Science Agency to the investigating officer disclosed that no seminal material was found on the item sent to it by the medical officer, therefore, no further DNA (Short Tandem Repeat profiling) was conducted on these items, meaning thereby that the forensic report also did not verify the allegation of sodomy against the petitioner. The learned law officer on the instructions imparted by the investigating officer present in Court submits that as the act of sodomy has not been established during the course of investigation, so, the offence under section 377, P.P.C. has been converted into section 377-B, P.P.C., but when he was confronted regarding the availability of any evidence in this regard, the answer is in the negative. Even otherwise, it is apprised to the Court that the investigation has already been completed, meaning thereby that handing over the custody or the petitioner to the police is neither likely to serve my useful purpose nor it seems justified.

4. All these factors, discussed supra lead to the conclusion that the involvement of the petitioner on the basis of mala fide on part of the complainant cannot be ignored, hence, this petition is allowed and ad-interim pre-arrest bail already granted to the petitioner is confirmed, subject to his furnishing fresh surety bond in the sum of Rs.2,00,000/- (Rupees two lacs) with one surety in the like amount to the satisfaction of the learned Trial Court. SA/M-39/L Bail grante