' Najibullah, petitioner seeks post-arrest bail in case F.I.R. No,27 dated 8-4-2003 registered under section 377, P.P.C. At Police Station, Panyala, District D . I . Khan.
2. The prosecution story in brief is, that on 8-4-2003 at `Peshivela' Tufail Muhammad son of complainant Abdullah Jan, a minor boy of 5/6 years of age, accompanied by Rashid (4/5) went to the nearby. `Surang' for playing. In the `Surang', the petitioner caught hold of the minor and subjected him to the act of sodomy. At the relevant time the complainant had gone to Bazar to make purchases. On return, he found the child weeping. On asking the child narrated his woeful story and charged the petitioner for the commission of crime. The complainant immediately reported the matter at Police Station, Panyala at 6-00 p.m.
3. The petitioner has approached this Court for grant of bail on refusal of the same by the forums below vide orders dated 3-7-2003 and dated 23-7-2003 respectively.
4. In support of the bail application, Mr. Abdur Rashid Khan, Advocate for the petitioner contended, inter alia, that there is absolutely no evidence which could connect the petitioner with the commission of crime; that there is inordinate delay of about 9 hours in lodging the F.I.R.; that the place of occurrence has not been shown in the site plan and that the medico-legal report does not support the prosecution case as there were neither actual penetration nor there were bruises or marks of violence and injuries present on the body of the victim. Additionally, he urged that on account of minority of the petitioner, he is entitled to be released on bail in view of subsection (7)
(b) of section 10 of Juvenile Justice System Ordinance, 2000. To substantiate the contentions, he placed reliance on Mansoor Ahmad and others applicants v. The State respondent 2002 PCr.LJ 657 Karachi; Muhammad Ibrahim alias Pappu petitioner v. The State respondent 1996 PCr.LJ 685 Lahore; Raees. Azam and two others petitioners v. The State 1995 PCr.LJ 541 Peshawar; Muhammad lqbal petitioner v. The State respondent 2003 PCr.LJ 1991 Lahore.
5. Mr. Shaukat Hayat Khakwani learned Deputy Advocate-General for the State opposed the bail application and contended that sufficient material has been collected by the prosecution which fully involve the petitioner in the commission of this case and minority alone, per se is no ground for release of an accused person on bail in case he is not held entitled for bail on merits. He placed reliance on Mudasar alias Babu petitioner v. The State and another,' 2001 PCr.LJ 818 Peshawar; Qari Muhammad Asif petitioner v. The State PLD 2000 Peshawar 51.
6. Considering the case from all angles, I am of the view that discretion exercised by the Courts below in refusing bail to the petitioner is not open to any exception and interference by this Court.
There appears no reasonable ground at this stage to hold that the petitioner is not guilty of the offence with which he is charged. The petitioner is directly nominated in the promptly lodged F.I.R.
For the commission of crime and medico-legal report fully supports the charge. It may be observed that for constituting offence under section 377, P.P.C., penetration into anus would not be essential in every case as held in Muhammad Ali and another v. The State PLD 1961 Dacca 447.
7. There is no enmity between the parties and therefore, it is not a case of false implication. The petitioner has committed an offence involving moral turpitude and as such he cannot be allowed to take the benefit of age and make the same a basis for his enlargement on bail.
8. The doctor at the time of medical examination had obtained swabs from the anterior for chemical examination of semen. The said swabs were sent to chemical analyst whose report is in positive.
9. Perusal of the record also reveals that the trial in the Court has commenced and next date of hearing has been fixed. In a case where trial has commenced and merits of the case are also such from which a case cannot be made out for further inquiry, this Court will not exercise discretion in favour of the petitioner.
10. Consequently, the bail application is dismissed being devoid of merit and substance. I1. It may be observed that the findings arrived at by this Court are tentative in nature and would not influence the mind of the trial Court while determining the guilt or innocence of the petitioner.