AQIB vs The STATE
The petitioner sought post-arrest bail in a case registered under sections 452, 449, 448, and 377 of the Pakistan Penal Code 1860, relating to an allegation of sodomy committed against a minor victim. The core legal question was whether the petitioner was entitled to bail given the heinous nature of the offence and the medical evidence supporting the charge. The Gilgit Baltistan Chief Court held that the allegations were heinous and heart-rendering, directly supported by a prompt FIR and corroborated by the medical report confirming the commission of the offence. The court ruled that the offence fell within the prohibitory clause of section 497 of the Code of Criminal Procedure 1898 and dismissed the bail petition. The key principle laid down is that bail should be refused in heinous offences involving the abuse of minors where there is strong prima facie evidence and corroborative medical reports linking the accused to the crime.
- Whether post-arrest bail can be granted to an accused charged with an offence under section 377 of the Pakistan Penal Code 1860 falling within the prohibitory clause?
- Does medical evidence corroborating a prompt FIR disentitle an accused from claiming post-arrest bail?
- Whether bail should be refused when the allegations involve heinous crimes against minors supported by a medico-legal report?
- Section 452, Pakistan Penal Code 1860
- Section 449, Pakistan Penal Code 1860
- Section 448, Pakistan Penal Code 1860
- Section 377, Pakistan Penal Code 1860
- Section 497, Code of Criminal Procedure 1898
- Section 497(1), Code of Criminal Procedure 1898
ORDER
MALIK HAQ NAWAZ, J.---The petitioner seeks bail after arrest in case FIR No.41 of 2016 dated 12.8.2016 charged under sections 452/449/448/377, P.P.C. registered at Police Station City Chilas District Diamer.
2. Precisely the story as set up by Faizan (victim) son of Fayyaz resident of Balakot age about 10/11 years is that after death of his mother, his father contracted a second marriage and he was brought by his real uncle Aurangzeb, to Chilas, where his uncle has established a barber shop and he was frequently visiting the shop of his uncle. On the fateful day his uncle and his cousin Bilal went to Jamah Masjid Chilas to offer Juma prayer and left him in the shop. In the absence of his uncle when he was alone in the shop, the present petitioner entered into the shop and took the complainant (victim) into a wash room and on raising hue and cry the accused/petitioner pressed his throat and committed sodomy with him. In the meanwhile his uncle Aurangzeb and Bilal came back and took him to police Station Chilas, where he lodged the FIR.
3. The learned counsel for the petitioner submits that the petitioner has not committed the offence and has been falsely implicated in the case. The learned counsel further contended that as per school leaving certificate the date of birth of the petitioner is 7 January 2006 and his case falls within the ambit of section 497(1), Cr.P.C. further the complainant is no more interested to prosecute the case any further. The complainant is ready to get his statement recorded before this .Court if permitted in support of compromise. The learned counsel relied on 2005 PCr.LJ 617, 2012 M LD 1965, 2002 PCr.LJ 657 and 2009 PCr.LJ 197 in support of his contentions.
4. On the other hand the learned Deputy Advocate General opposes the petition with the contention that the petitioner is directly charged in the FIR, which has been lodged, promptly and without loss of time. The factum of commission of sodomy has been confirmed by the Medical Officer D.H.Q Hospital Chilas. The victim is minor and his life has been stigmatized for all the time to come.
5. After hearing the learned counsel for the parties and perusing the record, the allegations against the petitioner are not only heinous but heart rendering. A poor child, who is also deprived of love and affection of his mother and due to second marriage by his father he has been brought from Balakot to Chilas by his real uncle who is a barber by profession and taking care of a near to orphanage child. The victim's age as shown in Medico Legal Report (MLR) is hardly 10 years who was made to succumb to bestial design of an active agent. The victim gave an account of his ordeal, in the FIR, which is further corroborated by the Medical Officer, who immediately examined the victim and found that under clothes were mud stained. Scratch margins were seen along the buttock. The doctor further observed that the anal margins were abraded all around. The abrasion was more marked along 4 and 5 "O" clock position. Blood was presented at 12 "O" clock position. The medical evidence corroborates the version given in FIR. The offence is heinous one and also falls within the prohibitory clause of section 497, Cr.P.C.
6. The result of above discussion is that, I am not inclined to accept this petition, which is accordingly dismissed. File.