Through this petition under Section 497 Cr.P.C. the petitioners seek bail after arrest in case F.I.R. No, 129/2005, dated 03.05.2005 registered under Section 12 Offence of Zina (Enforcement of Hudood)
Ordinance, VII of 1979 read with Sections 377/511/506-11/292 PPC at Police Station City Kabirwala, District Khanewal.
2.Briefly the allegation in the F.I.R. against the petitioners is that they after threatening the victim, complainant's son, undressed him and on pistol point attempted to commit sodomy with him. They also photographed nude snaps of the victim. On seeing the witnesses attracted to the spot, the petitioners fled-away from the spot with pistil and cameras.
3.Learned counsel for the petitioners contend that Farakh Lashari, Petitioner No, 2 is student of B.A., who had not taken the victim anywhere and offence under Section 12 Islamic Law to his extent is not even made out. It is further contended that at the most it was a case of attempt to commit sodomy., It is also contended that Usman Petitioner-No, 1 is aged about 14 years according to his birth certificate while he has been recorded as 14% years of age in the School Leaving Certificate and doctor also observed his age as 16 years at the time of medical examination, as such, his case falls within the Ist proviso to Section 497(1) Cr.P.C. and there is no allegation that he had even attempted to commit sodomy with the victim. It is lastly contended that the petitioners are not previous record holder.
4.Learned counsel for the State, on the other hand, opposes this application on the ground that the petitioners are named in the F.I.R. and offence under Section 12 of Islamic Law is made out as the victim after taking to the place of occurrence was made naked and attempted to commit sodomy.
It is also contended that the Hon'ble Supreme Court of Pakistan in 1999 SCM R 338 has cancelled the bail of an accused, who was aged about 16 years. Also relies upon 2004 SCMR 318 in support of his contentions.
5. I have heard the learned counsel for the parties and also perused the record. The petitioner Usman is aged about 14 to 16 years and similarly the other petitioner Farakh Lashari is a student of B.A. Class. They are not previously involved in such like cases and are first offender. The remaining of the petitioners in jail can ruin their future. It was a case of only attempt to 'commit sodomy.
Nothing is to be recovered from them and the remaining of the petitioners in jail will serve no beneficial purpose to the prosecution. Even otherwise, case of Usman petitioner falls within the Ist proviso to Section 497(1) Cr.P.C. and in the facts and circumstances of the case he is entitled to the concession of bail. The case law cited by the learned counsel for the petitioner is not applicable to the facts and circumstances of the present case as in 1999 SCM R 338 the age of the victim was 9 years but in the present case the victim being class fellow of Usman was more than 14 years of age. There is no cavil to the preposition that the bail cannot be granted to the accused involved in cases failing within the prohibitory clause. But in the present case the petitioners are young persons and the only allegation was levelled against them that they had attempted to commit sodomy. As far as, offence under Section 292 PPC is concerned, that is bailable.
6. In the above circumstances, this application is accepted and the petitioners shall be released from jail subject to their furnishing bail bonds in the sum of Rs, 1,00,000/- cash with two sureties each in the like amount to the satisfaction of learned trial Court.