1. ' Petitioners, three in number, are accused of offences falling under section 12 of Ordinance VII of 1979, read with section 377, P.P.C. Vide F.I.R: 130 registered on 15-4-1988 at Police Station Gujjar Khan.
2. They were arrested on 16-4-1988 and since then are behind the bars. Investigation is complete.
3. Allegations against the petitioners are that Tahir accused took Faisal Taj from his house under a false pretext of returning cricket bat to him and thereafter in a room belonging to him committed sodomy on him. Other two accused, who were shown present in the room, also subjected Faisal Taj to their unnatural lust. On the basis of information given to the police by Faisal Taj, a case was registered against all the three accused under the afore-noticed penal sections of law. Petitioners applied for bail to Additional Sessions Judge, Rawalpindi. It was declined on 9-5-1988. Syed Zia Hussain, Advocate, has addressed the Court on behalf of accused-petitioners. Learned A.A.-G.
4. Appeared on behalf of the State.
2. After hearing learned counsel for both sides, I find that a case for admitting the accused to hail has been made out. As for the offence of sodomy, apart from the delay of 28 hours in lodging the report, there are other important factors which cannot be lightly brushed aside even at the bail stage. These are: (a) there are no marks of violence on the person of the victim; (b) medico-legal examination does not sufficiently prove the commission of the offence of sodomy; and (c) report of Chemical Analyst is in the negative. Even Additional Sessions Judge himself says in his impugned order that in regard to this offence there is room for further inquiry. As for application of section 12 of Ordinance VII of 1979 to the facts of the present .Case, learned counsel relics on Muhammad Razzaq and Munir Ahmad v. State PLD 1967 SC 363, Zulfiqar v. State PLD 1985 F.S.C. 404, Shamas Saeed Ahmad Khan v. Shafaullah and another 1985 SCMR 1822, Muhammad Akhtar v.
5. Muhammad Shafique and another 1986 SCMR 533 and a decision of this Court in Abdul Razaq alias Allah Ditta v. State 1986 P Cr. L J 744. At this stage, it is neither desirable nor called for to make deep comments on the merits of the case, be it prosecution or defense version. Ashfaq alias Mithoo is presently a student of 7th Class. His date of birth, as indicated in the school certificate, is 1-1-1973. Ages of the other two accused also range between 17 and 18 years. There is another important circumstance, i,e, though the accused are shown to have committed sodomy in a locked room, yet they managed to escape in presence of Haji Abdul Sattar maternal-uncle of Faisal Taj, and Muhammad Rafiq, also a grown up person. For all these reasons, case of the petitioners even in regard to application of section 12 of Ordinance VII of 1979 becomes that of further inquiry. Accordingly, I accept the application and admit Ashfaq alias Mithoo, Tahir and Muhammad Akram accused to bail in the sum of gs.30,000 each with one surety each in the like amount to the satisfaction of Assistant Commissioner/Duty Magistrate, Gujjar Khan. .