' Both the appeals arise out of a common order passed by District Criminal Court, Mirpur, on April 17, 1990, whereby prayer of the accused-appellants for their release on bail was declined; these are disposed of together.
2. Asif Iqbal, complainant moved an application to the Superintendent of Police, Mirpur, on March 20, 1990, containing the allegation of commission of unnatural offence (sodomy), abduction and infliction of injuries by assault by the accused persons on the night of March 19, 1990 in Chittar-Parri Hamlet. It was alleged that the complainant was a shopkeeper. On the evening of day of incident, he alongwith Muhammad Rauf, Muhammad Shafique, Sajid and Mistri Rafique, visited one Liaqat Hussain. At about 9 p.m., when the complainant and his associates were on their way home, four persons appeared from an unoccupied shop. They were armed. Munir Hussain and Iftikhar Ahmad, accused advanced towards the complainant, caught hold of him and forced him inside the shop, Zulfiqar and Iftikhar, who happened to be brothers, led the associates of the complainant, by force, to a corner of the same unoccupied shop. The door was closed. Iftikhar Hussain guarded the door.
Zulfiqar, Nisar and Munir gave beating to the complainant. Thereafter Zulfiqar directed him to remove his Shalwar. On his refusal, Zulfiqar and Munir forcibly removed his Shalwar. Zulfiqar placed the barrel of his gun on the shoulder of the complainant whereas Munir Hussain committed unnatural offence with him. The complainant suffered injuries on his nose, face and other parts of the body.
3. Munir Hussain was arrested whereas the other accused secured their bail pre-arrest. The District Criminal Court turned down the plea of the accused for bail. Munir Hussain moved this Court in appeal and the other accused, after moving afresh on their arrest, preferred the present appeal.
4. Mr. Muhammad Yunus Surakhvi, the learned counsel for Munir Hussain accused, argued that the story of the prosecution suffered from improbabilities and contradictions, as such it was a case of further inquiry. The learned counsel argued that his client was roped in on account of enmity. Ch. All Muhammad, the learned counsel for the other accused, argued that the accused-appellants were innocent. The role ascribed to them was much lesser in gravity. Moreover, the name of Iftikhar was wrongly quoted as Mukhtar. On such considerations, the accused deserved concession of bail.
The learned Additional Advocate-General and the learned counsel for the complainant opposed the aforesaid contentions by drawing attention of the Court to the relevant provisions of law and the facts of the case. Mr. Abdul Latif Dutt, the learned counsel representing the complainant, in support of his contention, referred to PLD 1985 Lah. 256, PLD 1986 Lah. 16 and 1988 P Cr. L J 1260.
The learned counsel referred to the case of Muhammad Sadiq PLD 1985 SC 182 while opposing grant of bail to Zulfiqar, Iftikhar and Nisar.
5. The complainant was medically examined by Dr. Abdul Shakeel Khokhar, next day after the incident. In the opinion of the doctor, the victim was subjected to sodomy by force. Here it is relevant to mention that Sajid, one of the eye-witnesses, in his affidavit, excluded himself as having seen the incident as reported in the first information report.
6. The complainant appears to be a young man. He is a shopkeeper. There is no apparent reason shown or explained for falsely roping in the accused on the charge of an offence like sodomy. In the sub-continent, sodomy is considered as highly detestable. In Islam, it is considered a 'grave sin'.
The victim of such an offence, ordinarily, avoids to unfold the incident on account of fear of shame, notoriety and the immorality attached to the incident. This is why, it appears in the present case, that the first information report was made after some interval.
7. It was inquired from the learned counsel for the defence to satisfy the Court as to why the complainant felt constrained to show himself as victim of the alleged offence when ordinarily no one would volunteer to accept himself as a passive agent. No reasonable explanation was advanced by either of the learned counsel for defence.
8. The objection of improbability of the story does not sound well as, ordinarily, unless the victim was subjected to the alleged offence in the manner described by him, the position of the eye- witnesses occupied by them under coercion and force of the assailants, may not have been described as such. Their introduction may or may not have been added to highlight the point of identification. But here the fact is that Munir, accused, is also a shopkeeper in Chittar-Parri Bazar.
The complainant and the assailants were very well-known to each other, as such the question of identification was not of much importance.
9. One of the objections raised on behalf of the Additional Advocate-General was that it was a case of an offence under section 377, Penal Code, as such it was tribal by a Magistrate 1st Class.
The learned counsel for the complainant, however, took a different position. According to him, this case was covered both by the provisions of section 12 of the Offence of Zina (Enforcement of Hudood) Act as well as section 377 of the Penal Code. It is not permissible to go into deep appreciation of the proposition as prayed before this Court by the learned Additional Advocate- General. The fact remains that whatever the provisions of law are applicable to the case, the accused-appellants do not deserve the concession of bail under section 12 of the Offence of Zina (Enforcement of Hudood) Act or section 377 of the Penal Code.
' There is no force in these appeals. These are, therefore, dismissed accordingly. However, the accused may renew their prayer for release on bail after recording of evidence of the complainant.