Petitioners Kamran son of Habib Ullah, Ghulam Yaseen son of Nasrullah and Matee Ullah son of Saif Ullah have moved this petition for the grant of pre-arrest bail in case FIR. No, 498/2010 dated 14.11.2010 under Sections 337-J & 377 PPC registered at Police Station Kot Chutta District Dera Ghazi Khan.
2. FIR was lodged by Mst. Sughran wife of Ameer Bakhsh mentioning the facts that she along with her maternal grandson Dilawar aged about 11 years and sister went to attend marriage ceremony of the son of her cdusin; that on that night at 1:00 p.m. Kamran son of Habib, Yaseen son of Nasrullah and Matee Ullah son of Saif Ullah asked her grandson to had a drink and provided him some intoxicant in Pepsi and took him to nearby cotton crop field, and they all committed sodomy with him simultaneously; that on next morning at 8:00 a.m. she along with Sajawal Irshad and Bahawal Irshad sons of Irshad went in search of her grandson and found him lying facing downward in the fields, whose Shalwar was found removed. She alongwith the witnesses put on his Shalwar and took him to Shams-ul-Hassan Qureshi. The complainant's grandson Dilawar after gaining the consciousness disclosed that above mentioned three persons took him to nearby fields and after providing intoxicant in a soft drink committed sodomy with him. On the statement of the complainant instant case was registered as above mentioned.
3. Learned counsel for the petitioner contends that allegations against the petitioners are false, they have not committed any offence; that all the three petitioners are child as defined under Section 2(b) of the Juvenile Justice System Ordinance, 2000; that according to ossification test Matee Ullah and Kamran petitioners are aged between 13 to 14 years while Ghulam Yaseen petitioner is aged about 15 to 16 years; that instant case has been got registered by the complainant with ulterior motives as she wanted to extract illegal gains from the parents of the petitioners; that father of the minor victim Abdul Hameed had filed a private complaint under Sections 3/4 of the Illegal Dispossession Act against Qamar etc. and he was forcing the father of the accused Kamran to appear as witness in his favour which he refused and his son was falsely involved in this case as earlier he also threatened for that purpose; that report of Chemical Examiner is in negative; that petitioners have joined the investigation, which has already been completed. In view of the circumstances, petitioners, who are minors/students if arrested and sent to judicial lock up, they would suffer an irreparable loss and their carrier as student shall be spoiled; that when the report of Chemical Examiner is in negative, there is no proof of administering any intoxicant to the victim; that case of the petitioners, in these circumstances, requires further probe falling under Section 497(2) Cr.P.C. Prayed that bail be confirmed.
4. On the other hand, learned DPG assisted by learned counsel for the complainant has vehemently opposed this petition on the grounds that complainant lodged the report with the police without any delay; that if medico legal report in respect of victim is seen, Doctor has found abrasion at 5'O clock position on the anus of the victim; that negative report of the Chemical Examiner in view of the circumstances when accused claimed themselves as minors has no value; that petitioners as well as victim both are minors. In these circumstances when there is no mala fide on the part of police as well as complainant available on record, petitioners are not entitled for the concession of bail. While relying on Muzamil and another Vs. The State (2008 P.Cr.LJ 1521), Muhammad Saleem alias Jani Vs. The State (1996 P.Cr.LJ 1960), Abdul Rehman Vs. Ali Sher and others (2000 P.Cr.LJ 33), Rasool .Khan Vs. The State (2008 M LD 989) and Muhammad Sharif Vs. Shafaat Hussain alias Shaukat and another (1999 SCM R 338) prays that bail be dismissed.
5. I have considered the arguments advanced by learned counsel for the parties and have gone through the record.
6. Admittedly, according to the ossification test Matee Ullah and Kamran petitioners are aged between 13 to 14 -years while. Ghulam Yaseen petitioner is aged about 15 to 16 years. Allegations against the petitioners are that they committed sodomy with the victim Dilawar after administering intoxicant in the Pepsi but there is nothing on record if any investigation was got conducted by the Investigating Officer nor MLR present on record supports that any material was sent to Chemical Examiner for analysis after obtaining from the stomach of the victim to substantiate the allegation of intoxication. As far as MLR is concerned, Doctor has not given his final opinion about the commission of sodomy with the victim. Report of Chemical Examiner is in the negative and investigation in. this respect has already been completed by the I.O. No-doubt, victim is aged about 11 years but all the three petitioners are also minors and if at this stage their pre-arrest bail petition is dismissed and they are sent to judicial custody, it will not serve any useful purpose rather their carrier as students may spoil. Resultantly, keeping in view the peculiar circumstances of the case I while allowing this bail application confirm the interim pre-arrest bail already granted to the petitioners subject to their furnishing fresh bail bonds in the sum of Rs, 50,000/- each with one surety each in the like amount to the satisfaction of learned trial Court.