2005 PLP 663 (YLR)

Raja Shafaat Khan for the State. Date of hearing: 11th May, 2004. The petitioners seek post‑arrest bail in a case F.I.R. No.388 dated 16‑7‑2003 registered under sections 337‑J/377/379/411/34, P.P.C. read with section 12 of the Offence of Zina (Enforcement of Hudood) Ordinance, 1979.

2. Briefly stated, according to the contents of the F.I.R. narrated by the complainant at the police station is that he and his maternal cousin Muhammad Naseem used to go to the computer Institute for training at Octroi No.20. Yesterday at 4‑00 p.m. when both came back from the training reached near Dhaman Mour, Nasir son of Mansab Dar, Rizwan son of Abdul Qayyum and Saqlain son of Abdul Razzaq were standing there who told them that they wanted to see their house. The complainant along with the said persons reached to his house. Nascem, his cousin left for his house. At the house of the complainant, Nasir asked Rizwan to bring juice, who brought and the complainant was forced to take that juice on pistol point. The accused persons mixed intoxicant in the juice, as a result of which the complainant after taking it became unconscious. Thereafter, all these persons over‑powered the complainant, untied his Shalwar and committed sodomy with him.

3. The post‑arrest bail of the petitioners was declined by the learned Additional Sessions Judge, Rawalpindi.

4. Learned counsel for the petitioners contends that there is delay of about twenty seven hours in lodging the F.I.R. and after such a delay, the swabs taken from the anus of the complainant was sent to the laboratory for chemical examination. The report was manoeuvred by the prosecution while according to the dictum laid down by the superior Court, after the expiry of twenty‑four hours of the occurrence, the semen cannot be detected from the anus of the victim. Further contends that the present petitioners are behind the bars for the last about six months and the petitioners, who are young boys, are no more required by the police for, further investigation. The trial of the case has not been concluded as yet.

5. On the other hand, learned counsel for the complainant as well as the State has vehemently opposed the grant of bail contending that the petitioners have committed a heinous offence and during the investigation, watch belonging to the victim has been recovered from the possession of Rizwan petitioner. Further contends that the petitioners were fugitive from law and remained absconders for about five months.

6. I have heard the learned counsel for the petitioners as well as the State and perused the record. It is an admitted position that the Medical Expert has observed that it was a case of attempt to commit sodomy and unnatural, offence has not been committed with the complainant. According to the contents of the F.I.R., no P.W./eye‑witness of the occurrence has been named out. It is an unseen occurrence. The medical report also reveals redness on or around the anus. From the above, it means that the medico‑legal report is in contradiction to the F.I.R. The case of the petitioners is not covered within the provisions of section 12 of the Offence of Zina (Enforcement of Hudood) Ordinance, 1979. It is a case for attempt to commit sodomy which does not fall within the prohibition contained in section 497, Cr.P.C. However, due to the contradiction of the F.I.R. and the medico‑legal report and having no direct evidence of occurrence, the case of the petitioners falls within the ambit of further inquiry.

7. For the foregoing reasons and without prejudicing the merits of the case, this petition is accepted and the petitioners are admitted to bail subject to their furnishing bail bonds in the sum of Rs.1,00,000 (Rupees one lac) each with one surety each in the like amount to the satisfaction of learned trial Court/Illaqa Magistrate concerned. H.B.T./R‑103/L Bail granted.