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Criminal Miscellaneous No. 1128-B/BWP of 1983, decided on 7th January, 1984.

-- S. 497/498-Offence of Zina (Enforcement of Hudood) Ordinance (VII of 1979),. S. 12--Sodomy-Accused by deceitful means taking complainant to a house where they administered some intoxicant in soda-water and committed sodomy with him No motive on part of complainant shown to falsely implicate accused and expose himself to humiliation-Recovery of naked photographs of complainant taken by accused making story of com plainant correct--Accused though students but committed a heinous offence by employing sordid means of professional culprits, bail refused.

---- S. 12--Penal Code (XLV of 1860), S. 362--Complainant taken to a house by accused by deceitful means for commission of offence of sodomy--Section 12 of Offence of Zina (Enforcement of Hudood) Ordinance, 1979, held, applicable.

Sardar Ahmed Khan for Petitioners.

Nazir Ahmad Bhatti for the State.

Date of hearing : 7th January, 1983.

The petitioners have been arrested under section 12 of Offence of Zina (Enforcement of Hudood) Ordinance, VII of 1979. They have peti tioned for being released on bail.

2. According to the prosecution case M. Azhar Hussain is a 4th year student of the Murray College, Sialkot where his brother M. Akhtar Hussain Shahid is posted as a Major in the Army. In August, 1983, M. Azhar Hussain, the complainant had gone to Chak No. 60/N. P. to meet his parents. On 11th August, 1983 at about noon, he went to Rahimyar Khan City to meet Malik Ahmad Bakhsh, an ex-President of the Students' Union who was on friendly terms with him. The complainant had no knowledge about the location of the house of Malik Ahmad Bakhsh. Muhammad Nawaz, petitioner No. 2 who was his class-mate met him and took him to the house of Ikhtiar in Trust Colony. Malik Ahmad Bakhsh was not present there and in the meantime Muhammad Rafique son of Iqbal, petitioner No. 1 also came there. The complainant desired to see his friend Malik Ahmad Bakhsh and both the petitioners promised to search Ahmad Bakhsh and advised him to stay with them for the night. After having their dinner, the petitioners offered Soda-water to the com plainant to drink. The complainant felt drowsy and became unconscious. When he gained consciousness he found himself naked. His shalwar had been put off which was lying on his legs. When he was semi-conscious, the petitioners and their accomplices forcibly committed sodomy with him and also obtained his naked photographs. When the complainant came to proper senses, Fazal Sanki showed him a revolver and threatened the complainant with dire consequences if he divulged this fact to anybody else. The complainant came out of that house and met his brother Muhammad Zafar Hussain who had come there in his search. He narrated this incident to his brother and all the accused felt remorse and sought pardon from them and promised to return the naked photographs. The complainant did not go to the house of his parents and went to his brother's house at Sialkot. He narrated the entire incident to Major M. Akhtar Hussain Shahid, his brother who advised him to take legal pro ceedings with the help of his father. The F. I. R. has been delayed by 23 days It appears that on account of his modesty and honour, the com plainant who is a B. A. student did not disclose this fact to the police. The naked photographs have been shown to me. It occurrs to me that the complainant was being black-maled and he, therefore, made a desperate bid to divulge all the facts to his brother and then lodged the F. I. R. with the police. The delay in such a case does not appear to be very material.

No reason has been advanced as to why M. Azhar Hussain levelled such a serious charge against the petitioners. There was no motive for the complainant to have implicated the petitioners in this case and expose, himself to humiliation and the stinging taunts of the society. The recovery of the photographs reinforces the fact that the story narrated by the com plainant is prima facie correct.

4. In has been contended with reference to section 362, P. P. C. that an offence under section 13 of Zina Ordinance is not made out as there was no abduction in this case. Section 362 of the P. P. C. may be reproduced as under :-

"362. Whoever by force compels, or by any deceitful means induces, any person to go from any place, is said to abduct that person."

5. In this case, the complainant was taken to the house of Ikhtiar by deceitful means for the commission of this offence and in this manner, B the application of section 12 of the Zina Ordinance appears to be proper.

6. The petitioners by deceitful means took the complainant to the house of Ikhtiar where they administered some intoxicant in the Soda water in order to commit sodomy with the complainant. I am conscious C of the fact that the petitioners are also students like the complainant, but they have committed an heinous offence by employing sordid means o] professional culprits. I, therefore, reject this bail application.

M. Y. H. Bail refused.

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