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Criminal Miscellaneous Nos. 2103-B and 2077-B of 1983decided on 5th September, 1983.

---S. 497/498--Penal Code (XLV of 1860), S. 377/149--Offence of Zina (Enforcement of Hudood) Ordinance (VII of 1979), S.12--Bail--Case of sodomy--Complainant grown up person--First Information Report lodged with delay by three days--Severe criticism launched against medical report--Case of further inquiry into guilt of accused--Bail granted.

Ch. Muhammad Abdus Saleem for Petitioners.

Ch. Imtiaz Ahmad for the State.

This order shall dispose of Criminal Miscellaneous No. 2103/13 of 1983 brought by Jamil Ahmad and six others and Criminal Miscellaneous No. 2077/13 of 1983 filed by Mahmood Ahmad. Both the bail applications relate to the same F.I.R.

2. A case was registered against the petitioners under section 377/149, P.P.C. for committing sodomy with the complainant namely Nasim Ahmad. Earlier the petitioners were allowed bail in respect of this offence. Later on section 12 of the Offence of Zina (Enforcement of Hudood) Ordinance, 1979 was added and the learned Additional Sessions Judge by his order, dated 18th July, 1983 allowed bail to Mahmood Ahmad and Babar Ahmad petitioners under this section as well.

3. The other petitioners applied to the learned Additional Sessions Judge for bail under section 12 and the complainant moved him for cancel lation of bail granted to Mahmood Ahmad and Babar Ahmad petitioners. On 10th August, 1983 the learned Additional Sessions Judge cancelled the bail of the latter and refused bail to the co-accused.

4. I have heard the learned counsel for the parties. In the F.I.R. allegation of sodomy is levelled against Mahmood Ahmad, Mahbood Ahmad and Babar Ahmad only. The others are said to be present at the spot and shared the common intention of the three co-accused.

5. In the order dated 30th May, 1983 passed by the learned Sessions Judge, whereby bail was allowed to Babar Ahmad and Mahboob Ahmad under section 377/149, P.P.C, it is observed that except the complainant's statement there was no other evidence to support his version. The Investigating Officer was of the view that the complainant was merely tortured and not subjected to sodomy. These observations have been heavily relied upon on behalf of the petitioners and their learned counsel further contends that the complainant is 28 years old. The occurrence allegedly took place on 20th April, 1983 and whereas the F.I.R. was lodged on 23rd April, 1983. It has also been asserted that the complainant's medical examination was never routed through the police.

6. This case has been dealt with by two different Investigating Officers. The second Investigating Officer who appeared before me, states that the evidence of one Majeed Ali who is an independent witness is available to support the F.I.R. It is obvious that the opinion formulated by this Investigating Officer is diametrically opposed to the one expressed by the other who entered appearance before the learned Sessions Judge. In view of this factor coupled with the fact that the complainant is a grown up person and there is delay of three days in filing the F.I.R. and severe criticism has been launched against the medical report, I feel that this is a case for further inquiry into the guilt of the petitioners. Accordingly, their bail applications are allowed and they are enlarged on bail provided each one of them furnishes a bail bond in the sum of Rs.10,000 with one surety in the alike amount-in each case, to the satisfaction of the Assistant Commissioner, Jhang.

M. Y . H . Bail granted

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