ABDUL REHMAN vs ALI SHER and others

ORDER

' Two separate applications for cancellation of bail i,e, Criminal Miscellaneous No,863-CB of 1998/BWP (Abdur Rehman v. Ali Sher etc.) and Criminal Miscellaneous No,898-CB of 1998/BWP (Abdur Rehman v. Mureed Ahmad. Etc.) are pending before this Court and I propose to dispose of both these petitions by this single order because these relate to the same case.

2. Respondents Ali Sher, Mumtaz Ahmad and Mureed Ahmad are charged under section 377, . P.P.C.

Read with section 12 of the Offence of Zina (Enforcement of Hudood) Ordinance (VII of 1979) vide F.I.R. No,258, dated 14-8-1998 registered at Police Station Sadar, Sadiqabad, District Rahimyar Khan.

3. The allegation against the respondent is that they committed sodomy with Faiz Muhammad P.W.

One by one. Statement of the victim is supported by two other eye-witnesses.

4. Learned Additional Sessions Judge, Rahimyar Khan had allowed bail to the respondents on the grounds that there is 24 hours' delay in lodging the F.I.R.; that Murced Ahmad respondent was declared innocent by the police; that the victim is aged about 25 years and that Report of Chemical Examiner is negative. Mureed Ahmad respondent was allowed bail by the. Learned Additional Sessions Judge, Rahimyar Khan vide order, dated 2-9-1998 whereas Ali Sher and Mumtaz Ahmad respondents were granted bail vide order, dated 24-10-1998.

5. Feeling aggrieved the petitioner (complainant) has moved the instant cancellation petitions and I have heard the learned counsel for the parties at length.

6. It is now well-settled-that delay per se is no ground for rejection of inspires confidence. As regards innocence of Mureed Ahmad respondent suffice! Prosecution story provided it is supported by some persons whose evidence it to say that the opinion of the Investigating Officer/Agency is not binding on the Court. The ipse dixit of the police cannot be taken as gospel truth and the mere fact that Mureed Ahmad respondent has-been found innocent during investigation by the police cannot be taken to be a valid, legitimate and legal ground for admitting him to bail particularly when the complainant the victim and their supporting witnesses have immbiguously stated that Mureed Hussain respondent also committed sodomy with Faiz Muhammad victim. As regards the opinion of the Chemical Examiner suffice it to say that it is not a sine qua non for the success of cases like the instant one that the prosecution evidence should be supported by the Report of the Chemical Examiner. The report, in the instant C case, is negative because after the occurrence and before the medical examination the victim had passed stools. Hence it is not fatal for the prosecution case.

7. There is not an iota of evidence available on the file which may tend to show that there was a background of enmity between the parties which might have actuated the complainant to falsely implicate the accused/respondents. Having no previous animus, hostility or ill-will with the respondents I see no rhyme or reason why the complainant and his son Fiaz Muhammad should trump up a false case against them. Specific role is attributed to the respondents. The offence is punishable with 25 years' R.I. There was, therefore, hardly any justification for the learned Additional Sessions Judge to admit them to bail. The impugned orders are patently illegal and perverse which are accordingly set aside. The respondents are present in Court. They should be taken into custody forthwith.