2003 PLP 2525 (YLR)

Hafeez-ur-Rehman and Khizar Hayat petitioners seek post-arrest bail in case F.I.R. No.66 dated 8-4-2002 registered under section 12, Offence of Zina (Enforcement of Hudood) Ordinance No.VII of 1979 read with section 377, P.P.C. with Police Station Sadar, Rajanpur on the statement of one Mohsin Hafiz.

2. He has alleged therein that he is student of 8th class. On 8-4-2002 at about 8-00 a.m. he was going to Islamic Public School, Fazilpur. He when turned towards the western street ahead of his house, he found the present petitioners standing there. They said to him that his father was sitting at the Chowbara and was calling him. He accompanied them to that Chowbara. There Khizar Hayat bolted the door. They took him to a room there. They forcibly removed his Shalwar and subjected him to sodomy. On his hue and cry Habib Ullah and Muhammad Saleem, his uncles reached there and on seeing them they (accused) fled away from there by opening the door through the roofs in the bazar.

3. It has been contended on their behalf that they have falsely been roped in on account of inimical terms with the aforesaid uncles of the complainant as they had suspicion that they had got them involved in narcotics cases; that the report of Chemical Examiner is negative; that the doctor after the receipt of that report has opined that he was not subjected to sodomy; that the police in the investigation have found the case to be false and not based on truth; that they are behind the bars for the last more than six months; and that they are previous non-convicts.

4. Conversely, the learned State Counsel has opposed the application on the ground that they are named in the F.I.R.; that they had kidnapped the complainant and had subjected him to sodomy.

5. I have carefully considered the submissions advanced from both the sides with the help of the available record.

6. There is allegation against the petitioners that they had taken the complainant to a Chowbara and there they had subjected him to sodomy one after the other. The report of the Chemical Examiner is in the negative. The doctor on the basis of the said report has opined that he (complainant) was not subjected to sodomy.

7. Besides than this, the police in the later investigation on the basis of Medical Report has found the case not to be based on, truth. They have been challaned to Court leaving them to the mercy of the Court and so has been mentioned in Case Diary No.9 recorded on 7-6-2002 by Muhammad Bilal, S.-I./S.H.O. Police Station Sadar, Rajanpur.

8. All these facts essentially render their case open to further inquiry into their guilt and so is covered by subsection (2) of section 497, Cr.P.C. They are behind the bars for the last more than six months and stated to be previous non convicts. 9 I, therefore, accept this application and admit them to bail in the sum of Rs.50,000 each with one surety each in the like amount to the satisfaction of the learned trial Court. H.B.T./H-133/L Bail granted.