M. SHARIF Versus STATE

The petitioners who are involved in a case under section 12 of Ordinance VII of 1979, and section 377, P.P.C. arising out of F.I.R. No.214/93, dated 30-7-1993, seek to be admitted to bail.

2. As per F.I.R., it is alleged that on 30-7-1993, at 1-00 a.m., the complainant Wajid Hussain alongwith Gul Muhammad and others was returning to his village. While they were at a distance of one kilometre from the village, Sharif petitioner armed with rifle, Muhammad Riaz co-accused armed with .12 bore double barrel gun; Shabbir petitioner empty-handed and an unknown person were found standing on the roadside. They asked Waji:3 Hussain and Gul Muhammad to alight from the cycle. Muhammad Sharif and the unknown person took away Gul Muhammad aside, whereas Riaz and Shabbir undressed the complainant and thereafter committed unnatural offence with him. Thereafter, Muhammad Sharif and the unknown person also committed the same offence with the complainant.

3. Learned counsel for the petitioners contended that the F.I.R. was lodged after a delay of 36 hours, which remained unexplained; according to the medical report, the doctor was not sure at the time of examination of the victim whether he was subjected to unnatural lust or not, he depended upon the report of the chemical examiner with respect to the anal swabs; hence the prosecution has failed to prove positive that the victim was subjected to sodomy by three persons.

The learned counsel further submitted that Muhammad Sharif petitioner was found incapable of performing sexual act, as is apparent from the medical report, hence his involvement in the crime is not proved, and that the case has been registered on account of previous enmity arising out of using of village land as Wagon Adda and possibility cannot be ruled out that the petitioners might have been involved in this case due to party politics of the village, thus the case against the petitioners being one of further inquiry, they are entitled to the grant of bail.

4. Learned counsel for the State assisted by the Police Officer, submitted that the petitioners committed the heinous offence under section 12 of Ordinance VII of 1979, and the medical report of Muhammad Sharif per se does not support his case, as offence under section 12 of Ordinance VII of 1979 was prima facie committed, when he alongwith his co-accused abducted the victim and thereafter two other persons committed sodomy with him at the dead of night. The affidavit of Gul Muhammad P.W., creates no dent in the prosecution case as the has already made a statement under section 164, Cr.P.C. implicating the petitioners and the statement of the complainant is corroborated by the medical report.

5. I have heard the learned counsel for the parties and have perused the record. According to the medical report, the anal swabs of the victim were stained with human blood which corroborates the version of the complainant. At' the bail stage, I cannot critically examine the evidence which is likely to be adduced in the case. Suffice it to say that in the presence of this material, there exist reasonable grounds to believe that the case against the petitioners falls within the prohibitory clause. The contention of the learned counsel that Muhammad Sharif petitioner is impotent does not advance his .case, as the facts stated in the F.I.R. prima facie make out the offence under section 12 of Ordinance VII of 1979, against the petitioners, as observed by the learned Additional Sessions Judge in his order, dated 21-10-1993, while dismissing their bail application.

6. The upshot of the above discussion is that no case for bail is made out, The petition is accordingly dismissed.

N.H.Q./M-148/L

Bail refused.