ZAHOOR AHMED vs THE STATE
The petitioner sought post-arrest bail in a case registered under section 12 of the Offence of Zina (Enforcement of Hudood) Ordinance 1979 read with section 377 of the Pakistan Penal Code 1860 for allegedly committing sodomy upon a minor boy. The core legal question was whether the petitioner made out a case for further inquiry under subsection (2) of section 497 of the Code of Criminal Procedure 1898 given that the police investigation found the case false, the medical report showed a normal external anal area, and the Chemical Examiner's report was negative. The Lahore High Court held that the conflicting police findings, negative chemical report, and normal medical report brought the case within the scope of further inquiry. The court accepted the petition and granted post-arrest bail to the petitioner, laying down that where police investigation recommends discharge and medical and chemical reports do not support the allegations, the accused is entitled to bail under subsection (2) of section 497 of the Code of Criminal Procedure 1898.
- Whether an accused is entitled to post-arrest bail when the police investigation finds the case to be false and recommends discharge?
- Does a negative chemical examiner report and a normal medical report make out a case for further inquiry under subsection (2) of section 497 of the Code of Criminal Procedure 1898 in a sodomy case?
- Is an accused entitled to bail under section 497(2) of the Code of Criminal Procedure 1898 when the evidentiary material creates doubt regarding his guilt?
- Section 12, Offence of Zina (Enforcement of Hudood) Ordinance 1979
- Section 377, Pakistan Penal Code 1860
- Section 497(2), Code of Criminal Procedure 1898
ORDER
' Zahoor Ahmad, the petitioner has sought for post-arrest bail in case F.I.R. No,34 dated 23-1-2003 under section 12 of the Offence of Zina (Enforcement of Hudood) Ordinance (VII of 1979) read with section 377, P.P.C. Registered with Police Station Saddar Kehror Pacca, District Lodhran.
2. Briefly the prosecution case as per F.I.R. Is that on 22-1-2003 at about 8-00 p.m. He had committed sodomy upon Abid Hussain aged about 13/14 years, the brother of the complainant in his shop.
2. It has been contended on his behalf that he has falsely been roped in; that in the investigation conducted by the two Investigating Officers i,e, S.H.O. And the D.S.P., Circle Dunyapur, the case has been found false and it's cancellation was recommended to and accordingly discharge report was prepared but it was not agreed to by the learned Ilaga Magistrate; that it appears from the MLR of the alleged victim boy Abid Hussain that he was not subjected to sexual violence; that the report of Chemical Examiner is negative; that all these facts make his case as one of further inquiry into his guilt; and that he is behind the bars for the last about four months and a previous non-convict.
3, On the other hand the learned counsel for the State has opposed the petition.
4. I have carefully considered the submissions made by the learned counsel for the parties with the help of available record.
5. Allegedly he had subjected the victim boy Abid Hussain to sodomy In his shop. In the investigation, the case was found false by the S.H.O., Police Station Kehror Pacca and the D.S.P., Dunyapur. It's cancellation was recommended to and accordingly, the report for his discharge from the case was prepared but it was not agreed to by the learned Ilaqa Magistrate concerned.
Besides than this, according to the MLR of the alleged victim boy, his external anal area was found normal. The report of Chemical Examiner is also to the effect that his anal swabs were not stained with semen.
6. In view of these facts his case has become as one of further inquiry into his guilt. The same, therefore, is covered under subsection (2) of section 497, Cr.P.C. He is stated to be behind the bars for the last about four months and a previous non-convict.
7. In these circumstances, I find him entitled to bail. The petition, therefore, is accepted and he is admitted to bail provided he furnishes bail bond in the sum of Rs,50,000 (Rupees fifty thousand) with one surety in the like amount to the satisfaction of the learned Sessions Judge, Lodhran/trial Court.