MUHAMMAD ASHRAF Versus THE STATE
ORDER
A case under section 377, P.P.C. read with section 12 of the Offence of Zina (Enforcement of Hudood) Ordinance, 1979, was registered against the petitioner at Police Station Gujjar Khan vide F.I.R. No.395 dated 16-8-1996, in which it was alleged that he had committed sodomy upon Nasir Mahmood a boy of 24 years of age after waylaying him at the threat of knife.
2. The petitioner applied for pre-arrest bail which was dismissed by the learned Additional Sessions Judge, Gujjar Khan, whereafter he applied for bail to the Court of learned Judicial Magistrate as the offence under section 12 of the Offences of Zina (Enforcement of Hudood) Ordinance, 1979, was meanwhile dropped by the Investigating Agency. Learned Judicial Magistrate granted bail to the petitioner on the ground that the victim was involved in similar cases in the past and that the competency of the petitioner/accused, who was 52 years of age, regarding the commission of the sexual act was yet to be determined. It was also held that there was difference of opinion in the medical reports. It was observed that the Medical Officer had clearly said that the petitioner was not in a position to perform sexual intercourse whereas the Board constituted subsequently came to the conclusion that there was nothing to suggest that the person is unable to perform sexual act.
3. A petition for the cancellation of bail was moved before the learned Additional Sessions Judge, Gujjar Khan, who accepted the same vide the impugned order and cancelled the bail granted to the petitioner by the learned trial Court. Hence this petition.
4. Learned counsel for the petitioner has submitted that it was not possible for the petitioner to waylay the victim, who was a grown up boy of 24 years of age, and then to commit sodomy upon him by showing him the knife. It is for this reason that the Investigating Agency initially dropped the offence under section 12 of the Offence of Zina (Enforcement of Hudood) Ordinance, 1979, but later on added the same while submitting the final report under section 173, Cr.P.C. It is contended that the victim was habitual to such like affairs and was a complainant in two cases in which the present P.Ws. were also the P.Ws. later on, those cases were compromised. Hence he submitted that the conduct of the victim would show that even in this case he did not come to this Court with clean hands. Lastly, it was submitted that due to the difference of medical opinion, the benefit of bail should be given to the petitioner who is an old man.
5. Learned counsel appearing for the State has opposed the grant of bail on the ground that the offence under section 12 of the Offence of Zina (Enforcement of Hudood) Ordinance, 1979, has since been added, therefore, the petitioner has no case for bail particularly when the report of the Chemical Examiner is also positive. The opinion given by the Board allegedly suggests that there is nothing to show that the petitioner was unable to perform the sexual act. This opinion of the Board of Specialists shall overrule the opinion given by a single doctor that the petitioner was unfit to perform sexual intercourse on account of his previous history of venereal disease. The impugned order was, therefore, supported.
6. I have considered the foregoing submissions and without entering into the deeper appreciation of the case, it is enough to say that there is difference of medical opinion regarding the commission of offence on the ground of capacity of the petitioner to perform sexual act. Even the Investigating Agency rambled about the application of section 12 of the Offence of Zina (Enforcement of Hudood) Ordinance, 1979. In the first instance, the aforesaid offence was dropped but later on added on the same facts. The credential of the victim though not a conclusive determining factor but still can be taken into account for the limited purpose of bail at this stage. The case of the petitioner is that of further inquiry. The petition is accordingly allowed and the petitioner is admitted to bail in the sum of Rs.30,000 with two sureties in the like amount to the satisfaction of the trial Court/Judicial Magistrate, Gujjar Khan.
N.H.Q./M-455/L ???????????????????????????????????????????????????????????????????????????????????????????? Bail allowed.