NADEEM vs THE STATE
This petition for post-arrest bail arises from an F.I.R. charging the petitioner with sodomy under Section 367-A of the Pakistan Penal Code 1860. The petitioner sought bail primarily on the basis of an affidavit from the complainant (the victim's father) claiming the victim failed to identify the petitioner and disowning the prosecution's story. The core legal question was whether bail should be granted based on such an affidavit, despite the offence being non-compoundable and the petitioner being named in the F.I.R. The Court held that the petitioner was not entitled to bail. The ratio decidendi is that where the victim and an eyewitness have provided statements under Section 161 of the Code of Criminal Procedure 1898 implicating the accused, and where medical and chemical evidence supports the prosecution, an affidavit from a non-eyewitness complainant cannot override the prima facie case, especially when the offence falls within the prohibitory clause and is non-compoundable. The Court emphasized that the Investigating Officer correctly disregarded the affidavit in the final report.
- Can an accused be granted bail based on an affidavit of the complainant disowning the prosecution story when the offence is non-compoundable?
- Does an affidavit from a non-eyewitness complainant override incriminating statements made by the victim and eyewitnesses under Section 161 of the Code of Criminal Procedure 1898?
- Is an accused entitled to bail when the offence falls within the prohibitory clause and is supported by medical and chemical examiner reports?
- Section 367-A, Pakistan Penal Code 1860
- Section 161, Code of Criminal Procedure 1898
- Section 173, Code of Criminal Procedure 1898
ORDER
' HASNAT AHMAD KHAN, J.--- Through this petition Nadeem, petitioner seeks post-arrest bail in case F.I.R. No,743 of 2007, dated 18-10-2007 registered at Police Station Chunnian, District Kasur, in respect of offences under sections 367-A, P.P.C.
2. Precise allegation against the petitioner is that he committed sodomy with Muhammad. Abu Bakar, a kid on 18-10-2007 after gagging him. Hence the F.I.R.
3. In support of this petition, learned counsel for the petitioner contended that the case against the petitioner was registered due to some misunderstanding inasmuch as some other person had committed buggery with Abu Bakar, alleged victim. In support of this contention learned counsel has relied on an affidavit submitted by the father of the victim before the Investigating Officer.
Through said affidavit Muhammad Khalid, complainant disowned the prosecution story with a claim that after lodging of the F.I.R. The petitioner was shown to the victim who failed to identify him (petitioner) as his culprit. Said complainant has appeared before this Court and reiterated the averments made in the said affidavit. He has joined in the prayer of the petitioner for grant of bail after arrest.
4. Conversely, learned Deputy Prosecutor-General opposed the bail application tooth and nail contending that the petitioner is specifically named in the F.I.R. And that the petitioner cannot be allowed bail on the ground of the compromise as the offence committed by the petitioner is not compoundable.
5. After hearing the arguments put forth by the respective learned counsel for the parties ardently I have straightaway noticed that the, petitioner is duly named in the F.I.R. Prima facie, he is guilty of a heinous, detestable and abominable crime as he had buggered a boy of 10/11 years. While making a statement under section 161, Cr.P.C. The victim duly supported the case of the prosecution. He narrated the detail of the offence committed by the petitioner after specifically naming him as the real culprit of sodomy. The statement of Abu Bakar, victim was duly supported by his younger brother, who also made a statement under section 161, Cr.P.C. Before the Investigating Officer and fully described the way the despicable offence was committed by the petitioner. According to the younger brother of the victim the offence of sodomy was seen by him by peeping through the door of the room wherein his elder brother was sodomized. Thenrdico-legal certificate as well as the report of chemical examiner, prima facie, support the prosecution case. The offence committed by the petitioner being not compoundable, he cannot be allowed bail on the basis of an affidavit of the complainant produced by him during the investigation. Needless to mention here that the Investigating Officer himself treated the said affidavit worthless. For the same reason the report under section 173, Cr.P.C. Has been prepared against the petitioner after finding him guilty of the offence. It is further noteworthy that father of the victim, admittedly is not an eyewitness of the occurrence. The offence allegedly committed by the petitioner falls within the prohibitory clause.
6. To put in a nutshell, the petitioner is not entitled to the concession of post-arrest bail.
Consequently, the application in hand is dismissed.