ALI RAZA Versus State
This matter comes before the Lahore High Court through a bail after arrest petition filed by Ali Raza, who was implicated in F.I.R. No. 893 dated 23-11-2003 registered under sections 377 and 511 of the Pakistan Penal Code 1860 read with section 12/7/79 of the Offence of Zina (Enforcement of Hudood) Ordinance 1979 at Police Station North Cantt. The core legal question concerns whether the petitioner is entitled to post-arrest bail given that the alleged offence falls under an attempt and does not attract the prohibitory clause of the Code of Criminal Procedure 1898, coupled with the absence of medical evidence. The court held that since there was no allegation of kidnapping, the Hudood Ordinance provision was inapplicable, and because the offence under section 511 carried half the punishment of section 377, it fell outside the prohibitory clause of section 497, Code of Criminal Procedure 1898. Furthermore, the lack of medical evidence rendered the case one of further inquiry under section 497(2). The court laid down the principle that bail is the rule and refusal the exception, particularly when an offence does not fall within the prohibitory clause and warrants further inquiry.
- Does an attempt to commit sodomy under section 377 read with section 511 of the Pakistan Penal Code 1860 fall within the prohibitory clause of section 497 of the Code of Criminal Procedure 1898?
- Whether the absence of medical evidence on record makes a criminal case one of further inquiry under section 497(2) of the Code of Criminal Procedure 1898 for the purpose of granting bail?
- Section 377, Pakistan Penal Code 1860
- Section 511, Pakistan Penal Code 1860
- Section 497, Code of Criminal Procedure 1898
- Section 497(2), Code of Criminal Procedure 1898
ORDER
Ali Raza, petitioner seeks bail after arrest in case registered against him vide F.I.R. No.893 dated 23-11-2003 under sections 377/511, P.P.C. read with section 12/7/79 Hadood Ordinance, 1979 at Police Station, North Cantt.
2. Allegation against the petitioner is that he has made an attempt to commit sodomy with Muhammad Usman son of the complainant Muhammad Habib. Petitioner applied for grant of bail to the trial Court as well as to Additional Sessions Judge . which was declined to him, hence this petition.
Learned counsel for petitioner contends that there was no kidnapping of the victim Muhammad Usman from the lawful guardianship of his father, therefore, provision of section 12/7/79 of Hadood Ordinance, 1979 is not attracted. Adds that complainant himself admitted in the F.I.R. that the petitioner made an attempt to commit sodomy therefore, provision of section 511, P.P.C. is attracted which provides half punishment provided under section 377, P.P.C. and therefore, the case does not fall under the prohibitory clause of section 497, Cr. P. C. Adds that there is no medical evidence available on the file to show that sodomy was committed with the victim Muhammad Usman.
4. Conversely, bail has been opposed by the State counsel on the ground that the heinous offence of sodomy under sections 377/511, P.P.C., has been committed and the petitioner has been nominated in the F.I.R. with specific role, therefore, he is not entitled for bail.
5. I have heard the arguments of the learned counsel for parties and perused the record with their assistance. There is no allegation of kidnapping of, victim Muhammad Usman. There is force in the contention of the learned counsel for petitioner that sections 12/7/79 of Hadood Ordinance, 1979 is not attracted in the facts and circumstances of the case because there was no allegation of kidnapping the victim. Section 511, P.P.C. is an attempt to commit sodomy and is punishable under section 377, P.P.C. which provides half of the punishment to be awarded under section 377, P.P.C., therefore, offence does not fall under the, prohibitory clause of section 497, Cr. P. C. Grant of bail is a rule and refusal is all exception as held in case reported as Tariq Bashir and 5 others v. The State PLD 1995 SC 34. There is no medical evidence on the record, therefore, case of the petitioner is of further inquiry within the meaning of section 497(2), Cr.P.C. In view of the, above said facts, I am inclined to, grant bail to the petitioner. Resultantly, this application is allowed. Petitioner is admitted to bail subject to his furnishing bail bonds in the sum of Rs.50,000 (Rupees fifty thousand) with one surety in the like amount to the satisfaction of the trial Court.
H.B.T./A-382/L Bail granted.
Cited by 1 case
- MUHAMMAD KASHIF vs STATE and another PLJ 2009 Cr.C. (Lahore) 179