KASHIF alias COMMANDO vs THE STATE and another
This post-arrest bail petition was filed before the Lahore High Court seeking bail in a case registered under Section 377 of the Pakistan Penal Code 1860. The prosecution alleged that the petitioner committed sodomy against a six-to-seven-year-old child. The core legal question was whether the petitioner was entitled to post-arrest bail considering the investigating officer's finding of innocence, a negative Chemical Examiner's report, and the requirement of further inquiry under Section 497(2) of the Code of Criminal Procedure 1898. The Court granted post-arrest bail subject to furnishing bail bonds, holding that while police opinions are not binding on courts, the investigating officer's finding of innocence combined with the negative Chemical Examiner's report created reasonable doubt. The Court laid down the principle that the benefit of every doubt, even at the bail stage, must be extended to the accused, bringing the case within the scope of further inquiry under Section 497(2) of the Code of Criminal Procedure 1898.
- Can the benefit of doubt be extended to an accused at the bail stage?
- Whether an investigating officer's finding of innocence is a relevant circumstance when considering a bail application?
- Does a negative Chemical Examiner's report in a sodomy case bring the matter within the scope of further inquiry under Section 497(2) of the Code of Criminal Procedure 1898?
- Section 377, Pakistan Penal Code 1860
- Section 497(2), Code of Criminal Procedure 1898
ORDER
'CH. IFTIKHAR HUSSAIN, J.---Petitioner Kashif alias Commando through the instant petition has asked for post arrest bail in case F.I.R. No,219 registered under section 377, P.P.C. With Police Station City, Rajanpur on 30-6-2009.
2. Briefly, the allegation against him as per the F.I.R. Is that on 3-6-2009 at about 10.00 p.m. He has subjected Fayyaz Ahmad, 6/7 years old, the son of the complainant to sodomy.
3. After hearing the learned counsel for the parties and perusing the record, it has appeared that though he has been named in the F.I.R. With the above type of allegation against him but he during the investigation has been found to be innocent by Zafar Hussain, A.S.-I./I.O. Present in Court. He has testified to his such finding before this Court. He has left him to the mercy of the Court. The report of the Chemical Examiner is in the negative. Although the opinion of police is not binding on Court, yet it is a relevant circumstance to be taken into consideration while determining such like limited question i.e, of bail.
4. I may mention here that it is by now also well settled proposition in criminal administration of justice that benefit of every doubt, even at bail stage, is C to be given to accused. Although the nature of the alleged offence is quite serious but in view of the finding of the Investigating Officer and leaving him to the mercy of the Court and even the position of the boy's medical examination and the negative report of the Chemical Examiner there seems definitely room for further inquiry into his guilt. His case, therefore, is covered within the purview of subsection (2) of section 497, Cr.P.C. The challan has been submitted in the Court.
5. In these circumstances of the case, I am persuaded to hold that the case for his enlargement on bail has been made out. Resultantly, the petition is accepted and he is admitted to bail subject to his furnishing bail bond in the sum of Rs,1,00,000 (Rupees one lac only) with one surety in the like amount to the satisfaction of the learned trial Court.
6. However, I may observe here that the above observations are tentative in nature and meant only for the disposal of the matter in hand. These shall have no bearing at all on anybody's case at trial.