ALI BAIL, J.---Through the instant bail petition, the petitioner namely Shoaibullah Baig son of Karimullah Baig seeks post arrest bail in case FIR No.04/2019 dated 27-8-2019 registered under section 377 P.P.C. at Police Station Danyore at the instance of Ghulam Nabi son of Shukoor Ali resident of Muhammadabad Tehsil Danyore father of victim namely Nawazish Ali.
2. It is pertinent to mention here that earlier the petitioner/accused had applied for post arrest bail in the court of learned Judicial Magistrate Danyore, which was dismissed by the learned Judicial Magistrate Danyore vide order dated 28-9-2019 then the petitioner had also filed an application under section 497, Cr.P.C. for grant of bail in the Court of learned Sessions Judge Gilgit, which was also turned down by the learned Sessions Judge Gilgit vide bail order dated 16.10.2019, hence this bail petition.
3. Brief facts leading to the filing of the instant petition are that on 26-8-2019 at evening time the present petitioner/ accused took the above named victim to his house on his motorcycle and committed sodomy with the victim. While taking the victim by the petitioner/accused to his house the eye-witness namely Arsalan had witnessed the petitioner/ accused. At the time of sodomy upon the victim, family members of petitioner/ accused were not present at their home.
4. The learned counsel appearing on behalf of the petitioner/accused contende d that the petitioner/accused is innocent and the victim and complainant have falsely implicated the present petitioner/accused in this case. The learned counsel for petitioner further argued that complainant is not eye-witness of the occurrence and the alleged eye-witness namely Arsalan has even not witnessed the occurrence. The learned counsel for the petitioner/ accused further argued that medico legal report is also not available on the record hence, the petitioner is entitled for concession of bail.
5. Conversely , the learned Deputy Advocate General and the counsel for compla inant opposed this bail petition with full vehemence by contending that the petitioner/ accused is directly charged in the promptly lodged FIR with specific role of committing sodomy with the victim and he has also fully charged the petitioner/accused hence, the petitioner is not entitled for concession of bail. The learned counsel for the complainant further argued that offence 'under section 377, P.P.C. falls within the ambit of prohibitory clause of section 497, Cr.P.C. and eye-witness has witnessed the petitioner while the taking the victim on his motor bike to his house prior to the occurrence.
6. I have given my thoughtful consideration to the contentions of the learned counsel for the parties and perused the record with their able assistance.
7. Admittedly , the petitioner/accused is directly nominated in the FIR. The alleged victim boy has fully implicated the petitioner/accused in the offence by making his statements under section 161, Cr.P.C. Eye-witness namely Arsalan in his statement recorded under section 161, Cr.P.C. has stated that he has seen the petitioner/accused while taking the victim on his motorcycle immediately before the occurrence. Accused has been fully implicated in heinous offence against not only the victim, but against the society as well, as the petitioner/ accused has allegedly committed an offence of moral turpitude and, such like person does not deserve for concession of bail in exercise of discretionary powers under section 497, Cr.P.C. Moreover , Dr. Fazil Hussain, of 30 Bedded Hospital Danyore has examined the victim and he has state d in his report that on examination of clothes there was a small round to oval shaped grayish spot with the size of 1.5 X.1 inches found on outerior aspect of paint/trouser which was suspicious of Seminal fluid and has advised DNA examination of suspicious semen spot of the trouser from Forensic Laboratory Lahore. However , the above named Medical Officer has further stated that examination of anal area there was no any scratch marks indurations on perianal and glutted region. The anal splinter is normal and there is no bruise or bleedings in the related area.
8. The Medico Legal Report regarding the absence of any sign of violence on the private part of victim is matter requiring deeper scrutiny , which is not advisable for grant or refusal of bail and only tentative assessment can be made at the bail stage. Furthermore offence under section 377, P.P.C. falls within the ambit of prohibitory clause of section 497, Cr.P.C., thus the petitioner/accused at this stage is not entitled for concession of bail. The case laws submitted/relied upon by the counsel for the petitioner are not applicable to the facts and circumstances of the instant case. Each criminal case has to be decided on its own merits.
7(sic). For what has been discussed above, this bail petition being devoid of merit is here by dismissed. File