' MALIK HAQ NAWAZ, J.---The petitioner/accused along with one Younis Masieh was booked for the offences under sections 377/ 367-A and 343, P.P.C. Vide FIR No,23/16 of Police Station Airport Gilgit.
2. The precise details of the occurrence as narrated in the FIR are that on 24.3.2016 HC Muhammad Ismail Incharge Police Chowki Airport, deputed one FC Musarrat Zaman on area Gasht and FC Khalid Akhtar was deputed on duty in police chowki Airport. The complainant went to offer prayer in Qalandri Mosque. After offering prayer when he came back, he found a minor namely Shahzeb and two accused namely Waseem Masieh and Younas Masieh in Police Chowki. On inquiry F.C.
Mussarat Zaman disclosed that while on gusht, he was informed by a minor boy that, cries of a minor were coming from Masieh Mohallah. On receipt of this information, FC Mussarat Zaman entered into the house and found a minor boy namely Shahzeb Masieh, chained in a room, while the two accused, were present in the adjacent room. The minor was set free and he disclosed that the accused named above abducted him on 22.3.2016 from Jutial and confined/chained him and during the period of captivity besides physical violence, they also committed sodomy with him. The minor and two accused were brought in police Chowki, where the story narrated by FC Mussarat Zaman was authenticated by the minor, and the complainant HC Muhammad Ismail submitted a written application to SHO Airport Gilgit, who registered the FIR under Sections 377/367A/34, P.P.C., against the petitioner/accused and co-accused Younas Masieh.
3. The petitioner/accused Waseem Masieh applied for bail before the learned Sessions Judge Gilgit, who declined the same and being aggrieved from the order of learned trial Court, the petitioner has applied for concession of bail before this Court.
4. The learned counsel for the petitioner submitted at bar that the case is false and the petitioner has falsely been implicated in the case. He further submitted that the victim though implicated the petitioner for commission of sodomy but there is no medical evidence available on police file to verify the factum of sodomy. The petitioner is real uncle of the victim and it is not possible that a real uncle will commit sodomy with his minor nephew. The learned counsel laid much stress that no independent witness has come forward to support the prosecution case, which makes the case as one of the further inquiry. The learned counsel stated at bar that father of the victim appeared before the learned trial Court during hearing of bail application and stated before the learned Sessions Judge Gilgit that he does not want to prosecute the accused and the allegation of sodomy is absolutely false but the learned Sessions Judge, refused to record his statement on the plea that the offences leveled against the petitioner are not compoundable. The learned counsel stated at bar that he can produce the father of the victim if so directed by this Court.
5. On the other hand the learned Dy.A.G. Submitted that the petitioner/accused is directly charged in the FIR and there is no ill will and enmity existed between the victim or the complainant with the accused to falsely involve him in this heinous offence. The learned State counsel further stated that the offences leveled against him are very heinous in nature and also falls within the prohibitory clause of Section 497, Cr.P.C. He prays that bail petition is devoid of merits and be dismissed.
6. Having heard the parties and perusal of the record, it reveals that as per own statement of the victim he deserted his father house due to maltreatment of his step mother and took refuge in the house of one Shams-ur-Rahman. The victim further stated that he has embraced Islam and was living in the house of one Shams-ur-Rahman. The statement of said Shams-ur-Rahman is available on record and discloses the facts that minor Shahzeb was living in his house due to maltreatment of his step mother.
7. No doubt that there are serious allegations leveled against the petitioner/accused in FIR and in the statement of the victim but at the same time it is also evident from the record that the house was raided by FC Mussrat Zaman without obtaining any search warrant or if there was a real emergency at least two respectable of the mohallah must have been associated at the time of recovery of the victim from the house of the petitioner/accused. Another aspect of the case cannot be ruled out that since the minor was a neglected child and he converted from Christianity to Islam, which might have caused heart burning in the mind of the petitioner being his real uncle and he might have taken him to his house where he might have been abused for changing his religion and someone may have informed FC Mussarat Zaman, who without informing his superiors exerted his authority and cooked up the story. No chain was taken into possession by the I.O. Nor is the medical report of the victim available on file, the learned Dy.A.G. Was allowed one day time to inform the Court, the reasons of non-availability of medico legal report despite the fact that the victim was referred to City hospital Kashrote for medical examination. To satisfy my mind, I called SHO/I.O. To explain as to why the medical report of the victim was not available, when he was referred to City hospital soon after recovery. The SHO/I.O. Informed that the medico legal was negative thus it was not made a part of prosecution file.
8. The liberty of a person cannot be grudged on the assumptions that he is charged with a heinous offence and allegations against him will be matured at trial as there is no concept of advance punishment in criminal jurisprudence.
9. In the light of the above discussions, the petitioner/accused -is admitted to bail subject to his furnishing of bail bond in the sum of Rs,200,000/- (Rupees two lac only) with two solvent sureties each in the like amount to the satisfaction of trial Court.