AMIR and others vs STATE etc.
This criminal petition was filed by the petitioners seeking post-arrest bail in case FIR No. 917 dated 24.7.2008 registered under Sections 377 and 511 of the Pakistan Penal Code 1860 read with Section 12 of the Offence of Zina (Enforcement of Hudood) Ordinance 1979 at Police Station Cantt Abbottabad, after their earlier bail applications were dismissed by the courts below. The core legal question was whether the petitioners were entitled to post-arrest bail in light of the medical evidence and a compromise effected between the parties. The Peshawar High Court held that the medical report did not support the charge of sodomy as there was an absence of injuries indicating penetration, and noted that a genuine compromise had been effected between the complainant and the accused. Consequently, the court accepted the petition and directed the release of the petitioners on bail. The key principle laid down is that where medical evidence fails to corroborate the essential ingredients of the alleged offense and a genuine compromise is reached between the parties, the case for further inquiry is made out, warranting the grant of bail.
- Whether the absence of medical corroboration regarding penetration justifies the grant of post-arrest bail under Section 377 of the Pakistan Penal Code 1860?
- Can a genuine compromise between the complainant and the accused serve as a ground for releasing the accused on bail?
- What are the essential medical indicators required to substantiate the charge of sodomy in criminal proceedings?
- Section 377, Pakistan Penal Code 1860
- Section 511, Pakistan Penal Code 1860
- Section 12, Offence of Zina (Enforcement of Hudood) Ordinance 1979
By means of this petition the petitioners seek their release on bail in case FIR No, 917 dated 24.7.2008 under Sections 377 &511 PPC read with Section 12 of the Offence of Zina (Enforcement of Hudood) Ordinance, 1979 registered at Police Station Cantt: Abbottabad, as their bail applications were rejected by the learned Courts below.
2. No doubt, the complainant in his report has charged the accused for committing sodomy upon him but the medical report does not support him. According to Moodi Medical Jurisprudence, in cases of unnatural offence, if the victim is not accustomed to sodomy and being a teen ager and unconsenting party there must have abrasions, on the skin near the anus, feeling pain in walking, lacerations of the mucous membrane within the anus with effusion of blood etc. In this case the victim is reported to be a child of tender age while active agent, a healthy and grown up male, then in case of commission of sodomy and penetration, there should have been extensive and well defined injuries on the victim. It seems that the penetration has not taken place which is one of the most important ingredient to constitute the carnal intercourse punishable under Section 377 PPC.
3. Apart From the above, the complainant has effected a compromise with the accused, who today furnished written compromise in the shape of affidavit duly attested. So, keeping in view the factum of compromise which the complainant and his uncle admitted at the bar to be genuine, there remains no other' evidence to be produced at the trial to connect the petitioner with the crime.
4. Resultantly, the petitioners are directed to be released on bail provided each of them furnishes bail bonds in the sum of Rs, 2,00,000/- with two sureties each in the like amount to the satisfaction of Illaqa Duty Judicial Magistrate, who shall ensures that the sureties are local, reliable and men of