ABDUL SATTAR Versus State
This is a post-arrest bail application filed on behalf of the applicant accused, who was charged with committing sodomy with two minor boys. The core legal question before the Sindh High Court was whether the applicant was entitled to bail in view of the delayed FIR, inconclusive medical evidence, and an affidavit filed by the father of one of the victims exonerating the accused. The court held that the unreasonable delay of over twenty days in lodging the FIR, coupled with conflicting medical reports and the victim's father filing an affidavit stating no unnatural offence had been committed, made the case one of further inquiry under the law. Consequently, the court allowed the bail application and directed the release of the applicant upon furnishing required sureties. The key principle laid down is that unexplained delay in FIR lodging, coupled with mitigating circumstances such as a victim's father exonerating the accused and equivocal medical evidence, brings a case within the scope of further inquiry warranting the grant of post-arrest bail.
- Does an unreasonable delay in lodging the FIR make a case one of further inquiry for the purpose of bail?
- Whether post-arrest bail can be granted for an offence under Section 377 of the Pakistan Penal Code when the medical evidence is inconclusive and the victim's father files an affidavit exonerating the accused?
- Section 377, Pakistan Penal Code 1860
ORDER
SALMAN ANSARI, J.--- This bail application has been moved on behalf of the applicant/accused Abdul Sattar, Moazzin of Jamia Farooqia Masjid, Y-Area, Korangi No.1-1/2 Karachi.
2. Brief facts of the prosecution case are the applicant was arrested on the charge to have committed Sodomy with two minor boys, one being the son of complainant namely Liaq and other his class fellow Muhammad Ehsan. The bail application moved by the applicant was rejected by the learned IInd Additional Sessions Judge Karachi East vide order dated 16-1-2009 on the ground that there were serious allegations against applicant regarding committing sodomy, the medical evidence of one of the victims Muhammad Ehsan also supported the version of prosecutions.
3. It is argued by the learned counsel for applicant that father of victim child Muhammad Ehsan who was present before the Court had exonerated the applicant/accused and it was only medical examination report of the victim Muhammad Ehsan which showed that Ehsan had been subjected to the act of sodomy, the F.I.R. was lodged after a delay of more than 20 days on 26-12-2008 at 1745 hours while date of incident is shown as 6/7-12-2008 at about 1530 to 1600 hours, hence the case would require further enquiry. Learned counsel for applicant in support of his arguments has relied upon the case of Haji Muhammad Aslam v. The State 2006 MLD 624. Learned counsel appearing for the State have opposed the bail application of applicant on the ground that medical report shows that act of sodomy had been committed, therefore, same is liable to be rejected.
4. Having heard learned counsel for applicant, learned counsel appearing for the State, perused the material placed on record and case law cited at bar.
5. In this case the incident is shown as 6/7-12-2008 while medical examination of victim Liaq was conducted on 26-12-2008 and according to medical examination report only "slightly congestion present at 1-00 o'clock---No tear---No tenderness", as per opinion of doctor "nothing could be suggested for act of sodomy". While medical examination conducted on the same day of victim Muhammad Ehsan and as per medical examination report there was "slight tenderness present, sluggish tear present at 1-00 o'clock. I am opined that he has been subjected to act of sodomy". The father of victim Muhammad Ehsan has filed affidavit exonerating the applicant stating in his affidavit that no medical examination of his son was conducted. Hence, keeping in view of delay in lodging the F.I.R. and the finding given in Haji Muhammad Aslam v. The State (supra) where it was held that delay of three days in lodging F.I.R. had not been explained and victim was examined three days after the alleged occurrence, the case against accused was found to be of further enquiry he was granted bail. In 1989 MLD 3978 (Niamat Ali alias Denna v. The State) for an offence punishable under section 377, P.P.C. it was held that F.I.R. was delayed by two days---no marks of violence were found on person of victim---investigation had been completed. In the said case bail was allowed in the circumstances.
6. In view of the above discussion, I have arrived to the conclusion that there is an unreasonable delay in lodging of F.I.R. and looking to the medical examination conducted after about 20 days, also considering that father of one of victims Muhammad Ehsan, who was allegedly subjected to sodomy, appeared before this Court and filed his affidavit stating therein that no unnatural offence has been committed with his son making this case one which would require further inquiry. Accordingly, I allow the bail application. Let applicant be released on bail on furnishing surety in the sum of Rs. 2,00,000 and executing P.R. Bond in the like amount to the satisfaction of trial Court.
H.B.T./A-27/K Bail granted.