ORDER SHEET

IN THE HIGH COURT OF SINDH, CIRCUIT COURT, HYDERABAD

CR. B.A.NO.S-579 of 2012.

DATE                         ORDER WITH SIGNATURE OF JUDGE

22.10.2012.

Mr. Meer Ahmed Mangrio, Advocate for applicants.

            Mr. Shahzado Saleem, A.P.G. for the State.

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SALAHUDDIN PANHWAR,J-Applicants Aamir Hussain and Shahzad Ali @ Allah Dino seek post arrest bail in crime No.114/12 of P.S, Jamshoro under sections 377, 337-J and 342, PPC.

2.         It is alleged that on 12.5.12 at 9am, Muhammad Ashraf (victim), having age of 20 years, was found in unconscious condition in front of his house. Complainant brought him at hospital, where he came in senses and disclosed that his friends Aamir and Allah Dino (applicants) invited him on tea in their house; both served him tea, thereafter he went unconscious; both persons committed sodomy by giving intoxicant material in tea , subsequently complainant lodged FIR.  

3.         Counsel for the applicant ’s has inter alia contended that FIR is delayed about five days for which no explanation is provided, therefore, deliberation and consultation cannot be ruled out ; except victim no body has seen the incident; it is alleged that both applicants by giving intoxicant material in tea committed offence, but chemical report regarding any intoxicant given to the victim is negative; as per medical report during examination report it is found that injury is not painful and he has relied upon case of SAFDAR ALI v. STATE (2004 YLR-49), AHMED v. STATE (2005 YLR 670), MUHAMAMD IQBAL and others v. STATE (1986 P.Cr.L.J-954), HASIL & others v. STATE (1986 P.Cr.L.J.720), AMIR & others v. STATE (2009 P.Cr.L.J.197).

 4.        Conversely learned A.P.G. has vehemently opposed the bail application.

5.         Heard counsel and perused the record.

6.         According to prosecution case, both applicants after giving intoxicant to the victim Muhammad Ashraf committed sodomy. Admittedly there is no other witness except victim but as per victim, when he went unconscious then both accused persons committed sodomy with him. This statement of the victim makes it clear that victim himself has not seen the incident as he was unconscious before the incident and he came in senses in hospital therefore, how it can be determined at this stage that as to who out of two accused persons has committed the offence of sodomy or they both have committed the offence. This fact makes the case of further inquiry and requires evaluation of evidence. Further, it is evident from the record that admittedly alleged offence was committed on 12.5.12 and on next day i.e 13.5.12 the victim disclosed the manner of offence and names of applicants but the FIR was lodged on 17.5.12, with the delay of four days. I am conscious that people usually are reluctant in reporting such like matters but since there has been offered no explanation at all for such silence hence this also opens a room of further probe towards case of applicants / accused and even there is ample chances that victim might have given the names of applicants in result of deliberation and consultation, therefore, plea of the applicants / accused being falsely roped seems to be carrying weight. Since the medical report has negated administering of intoxication and the victim was unconscious when alleged sodomy was committed upon him. Moreover, on the next day of lodgment of FIR the swabs were taken for chemical examination and according to chemical examination report the result is negative. This score, too makes the prosecution case doubtful and apparently negates the prosecution case regarding the intoxicant material used by the applicant; According to medical report the rectal examination conducted by the doctor, it was found that no external lesion on anus injury seen, not painful, splinter tone normal; multiple reactor ulceration or tear seen, no congestion. It appears that medical examination also makes it doubtful, according to Modi Medical Jurisprudence in case of un natural offence, if the victim is un consenting party there must be abrasion on the skin near the anus, feeling pain in walking, and laceration of the mucous membrance within the anas with effusin of blood these all circumstances give inferences that prima facie no reasonable grounds exists against the applicants to believe that they have committed the offence punishable more than ten years therefore, I am of the firm view that applicants / accused have succeeded in bringing their case out of subsection (i) of Section 497 Cr.P.C to subsection(ii) of Section 497 Cr.P.C. Needless to add that once the accused succeeds in bringing his case within meaning of Subsection (ii) of Section 497 Cr.P.C he becomes entitled for concession of bail not as a matter of grace but as a matter of right.

7.         Keeping in view the above circumstances and cases relied above, I am inclined to accept the bail plea of the applicants / accused.

8.         By short order dated 22.10.2012 applicants were granted bail and these are the details reasons thereof.

9.         The observations made hereinabove are tentative in nature hence will not prejudice the merits of the case.

                                                                                                                                                                                                                        JUDGE.