SAIFULLAH vs THE STATE and anothers
The petitioner sought leave to appeal against the order of the Lahore High Court cancelling his post-arrest bail in a criminal case registered under Section 12 of the Offence of Zina (Enforcement of Hudood) Ordinance, 1979 and Section 377 of the Pakistan Penal Code 1860 for allegedly committing sodomy with a minor child. The core legal question was whether the petitioner was entitled to bail in the circumstances of the case, particularly considering the negative report of the Chemical Examiner. The Supreme Court converted the petition into an appeal and allowed it, setting aside the High Court's order and restoring the petitioner's bail. The Court held that the negative Chemical Examiner's report rendered the question of whether sodomy had been committed one of further inquiry under the criminal procedure, and noted that trial proceedings were being delayed by the complainant. The key principle laid down is that where medical or chemical reports prima facie weaken the prosecution's case and point towards further inquiry, bail should not be arbitrarily cancelled.
- Does a negative report from the Chemical Examiner make a case one of further inquiry for the purpose of granting bail?
- Whether the High Court was justified in cancelling the bail granted by the Additional Sessions Judge?
- Can bail be maintained when the trial is delayed by the conduct of the complainant?
- Section 12, Offence of Zina (Enforcement of Hudood) Ordinance 1979
- Section 377, Pakistan Penal Code 1860
' FAQIR MUHAMMAD KHOKHAR, J.--- The petitioner seeks leave to appeal from order dated 21-10- 2005 passed by the Lahore High Court, Lahore, in Criminal Miscellaneous No,5524/CB of 2005.
2. A criminal case F.I.R. No,185 of 2005, dated 6-5-2005 under section 12, Offence of Zina (Enforcement of Hudood) Ordinance, 1979 and section 377, P.P.C. Was registered against the petitioner at Police Station Mochiwala, District Jhang at the instance of Ahmad Nawaz. The complainant stated therein that on 4-5-2005 his minor son Mohsin Nawaz aged about 2-1/2 years went to the shop of the petitioner where the petitioner committed sodomy with the minor child.
3. The petitioner was arrested on 20-5-2005. He was allowed bail by the Additional Sessions Judge.
However, the complainant filed Criminal Miscellaneous No,5524/CB of 2005, which was allowed by the Lahore High Court, Lahore, by the impugned order, dated 21-10-2005 whereby the bail of the petitioner was cancelled.
4. The learned counsel submitted that the report of the Chemical Examiner was in the negative as no sodomy has been committed with the child. The case was, however, called for further inquiry.
5. On the other hand the learned Assistant Advocate-General of Punjab, opposed the bail on the ground that two witnesses had already been examined by the trial Court and that the case was likely to be concluded shortly.
6. We have heard the learned counsel for the petitioner as well as the learned Assistant Advocate- General, Punjab at some length. Admittedly, the report of Chemical Examiner is in the negative.
Therefore, the question whether or not sodomy had been committed with the minor child would require further inquiry. So far only two formal police witnesses have been examined. We are also informed that the complainant is causing delay in the conclusion of the trial.
7. For the foregoing reasons, this petition is converted into appeal and the same is allowed. The impugned order, dated 21-10-2005 by the Lahore High Court, Lahore in Criminal Miscellaneous No,5524/CB of 2005 is set aside. Consequently, the petitioner shall be released by the Executing the bail bond in the sum of Rs,50,000 with one surety to the satisfaction of the trial Court.