AMIR and otherss vs THE STATE
This petition for post-arrest bail arises from a criminal case registered under Sections 377/511 of the Pakistan Penal Code 1860, read with Section 12 of the Offence of Zina (Enforcement of Hudood) Ordinance 1979, following the rejection of the petitioners' bail applications by the lower courts. The core legal question was whether the petitioners were entitled to bail given the medical evidence and a subsequent compromise between the parties. The Court observed that the medical report failed to support the complainant's allegations of sodomy, noting the absence of physical injuries typically associated with such acts, thereby casting doubt on whether penetration—a necessary ingredient of the offense—had occurred. Furthermore, the Court noted that the complainant had entered into a genuine compromise with the accused. Consequently, the Court held that in the absence of corroborating evidence and in light of the compromise, the petitioners were entitled to bail. The principle laid down is that where medical evidence contradicts the complainant's version regarding the essential ingredients of an offense, and a genuine compromise exists between the parties, the case for bail is strengthened.
- Does the absence of medical evidence supporting penetration in a sodomy case entitle an accused to bail?
- Can a compromise between the complainant and the accused be a ground for granting bail?
- Is penetration a necessary ingredient to constitute an offense under Section 377 of the Pakistan Penal Code 1860?
- Section 377, Pakistan Penal Code 1860
- Section 511, Pakistan Penal Code 1860
- Section 12, Offence of Zina (Enforcement of Hudood) Ordinance 1979
' GHULAM MOHY-UD-DIN MALIK, J.--- BY means of this petition, the petitioners seeks their release on bail in case F.I.R. No,917, dated 24-7-2008 under sections 377/511, P.P.C. 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 Modi Medical Jurisprudence in case 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 had not taken place which is one of the most important ingredient to constitute the carnal intercourse punishable under section 377, P.P.C.
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 ensure that the sureties are local, reliable and men of means.
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