Kiramat Khan vs The State and another
The petitioner sought post-arrest bail in case FIR No.544 dated 02.11.2022, registered under Sections 506 and 377 of the Pakistan Penal Code 1860 read with Sections 36, 38 and 53 of the Child Protection Act, at Police Station Regi, Peshawar, on charges of attempting sodomy. The core legal question was whether the petitioner made out a case for further inquiry under subsection (2) of Section 497 of the Code of Criminal Procedure 1898. The Peshawar High Court held that since the medical report showed no signs of sodomy, the FSL report was negative for human semen, the complainant was not an eye-witness, and the accused had not confessed, the case fell within the ambit of further inquiry. The Court ruled that grant of bail in such circumstances is a matter of right rather than grace. The petition was consequently allowed, admitting the petitioner to bail subject to furnishing suitable surety bonds.
- Does a negative medical report and FSL report in a sodomy case bring the matter within the scope of further inquiry under Section 497(2), Code of Criminal Procedure 1898?
- Is the grant of bail considered a matter of right when a case falls within the ambit of further inquiry?
- Whether the absence of a confession and lack of eyewitness testimony warrant the release of an accused on post-arrest bail?
- Section 377, Pakistan Penal Code 1860
- Section 506, Pakistan Penal Code 1860
- Section 36, Child Protection Act
- Section 38, Child Protection Act
- Section 53, Child Protection Act
- Section 497(2), Code of Criminal Procedure 1898
JUDGM ENT
ABDUL SHAKOOR, J. Having failed to get the concession of bail from the Court of learned ASJ/C.P.C./JJC, Peshawar, vide order dated 03.12.2022, petitioner, Kiramat Khan, has moved the instant petition for the same relief in case FIR No.544 dated 02.11.2022, registered under Sections 506/377, P.P.C. read with 36, 38 and 53, C.P.A. at Police Station Regi (District Peshawar), wherein he is charged for making an attempt of sodomy on the nephew of the complainant.
2. Arguments heard and record of the cake gone through.
3. Perusal of the medical report of the victim suggests that no action of sodomy has been done upon him, whereas, the FSL report regarding anal swab and garments of the victim is also negative far human semen. Except the solitary statement of the complainant, no other incriminating evidence is available on record to prima facie connect the present accused-petitioner with the commission of offence; coupled with the fact that complainant is not the eye-witness of the occurrence. Mores, the accused has not yet confessed his guilt.
4. In view of the above facts and circumstances, case of the petitioner squarely falls within the ambit of Subsection (2) of Section 497, Cr.P.C. calling for further inquiry in the matter; and in such like cases grant bail is to be considered as a matter right and not as a matter of grace concession.
5. So far as, the applidability of rest of Sections of law is concerned, the same would best be determined by the learned trial Court, after recording pro and contra evidence. Besides, investigation in the case is complete and accused petitioner is no more required to the prosecution for any purpose. He is behind the bars since his arrest; therefore, his further incarceration in jail will serve no useful purpose.
6. Before parting with this order, this Court finds it necessary to mention that all the observations recorded above are tentative assessment just for the disposal of bail petition and not to influence the mind of trial Court, which is free to appraise the evidence strictly in accordance with law and merits of the case.
7. For what has been discussed above and on tentative assessment of material available on record, an arguable case for the grant of bail is made out, consequently, this bail petition is allowed and accused-petitioner, named above, is admitted to bail provided he furnishes bail bonds in the sum of Rs.200,000/- with two sureties each in the like amount to the satisfaction of learned trial Court. The sureties must be local, reliable and men of means.