Applicants Haji and Rasool Bux were booked by the prosecution in a case under sections 377, 34, 511, P.P.C. Read with section 18, Offence of Zina (Enforcement of Hudood) Ordinance, 1979 arising out of an F.I.R. No,62/92 registered at Police Station Bulri Shah Karim, District Hyderabad on 13-8-1994 at 12-30 hours lodged by Soonharo s/o Muhammad Rahim,Leghari in respect of the incident which is alleged to have taken place on 12-8-1994 at 9-00 hours, thus, admittedly after a delay of about 27- 1/2 hours.
2. The prosecution story as narrated by the complainant, who claims to be a student of 1st Year (which means 16 years old), is that on 12-8-1994, he was going to get the forms of Haris to have their names entered in the voter list as voters. He met his cousin Khair Muhammad who told him to go to the field of sugarcane where his uncle was waiting for his help. He stated that his cousin Khair Muhammad told him that his uncle was cutting grass in the field. When he reached there he found both the applicants in the field who asked him to allow them to have carnal intercourse with him.
On his refusal Rasool Bux caught hold of him and Haji untied and removed his trouser. Rasool Bux took his photographs with his camera. His cries attracted Muhammad Qasim and Muhammad Bachal, and on seeing them, both the accused ran away. The complainant reached his house and after narrating the incident to his father and consulting with Moulvi Muhammad Azeem during night hours, decided to lodge the report on the next day.
' Two separate bail applications were moved before the trial Court but they were rejected on October 2, 1994 by a common order passed by the learned VIth Additional Sessions Judge, Hyderabad. After their failure, the present application was preferred before this Court.
3. On 19-10-1994, when the application was tabled before me, I asked the learned counsel to bring on record the copy of the final report of the case so that it could be seen, what proposed evidence was in the hands of the prosecution. When the said report was seen by me it was surprising enough to note that the name of the main witness, who is said to be Khair Muhammad as per F.I.R., was missing from the Final Report. The story narrated by the complainant gets further dents, if the statements of witnesses recorded under section 161, Cr.P.C. Is compared with the contents of the F.I.R. The complainant had narrated in the F.I.R. That it was Khair Muhammad who told him to go to the field to help his uncle Muhammad Azim where he was reported to be cutting the grass, while the statements under section 161, Cr.P.C. Of the witnesses, namely Muhammad Qasim, Muhammad Bachal, Moulvi Muhammad Azim and Muhammad Rahim show that the complainant gave another story to the witnesses by saying that it was accused Haji, who had informed him that his uncle was calling him for help in the field. Why Khair Muhammad was dropped? The police papers are silent on this point.
' The final report also does not show that the prosecution has recovered the photographs of the complainant as alleged by him. Apparently it appears difficult to believe that a boy of about 16 years old, who is a student of 1st Year, would remain helpless in the hands of one accused while the other would take his photographs in such condition.
' Is it possible for a person to take such photographs without using both of his hands?
4. If the prosecution has failed to recover the photographs, then the story seems to be different from the one narrated in the F.I.R.
5. The performance of the police is also the most unappreciable because it shows their incompetency as well as the lack of knowledge about law especially in the cases of Hudood Ordinance. Section 18 of Offence of Zina (Enforcement of Hudood) Ordinance, 1979 (hereinafter referred to as the Ordinance) resembles to section 511, P.P.C. With the slightest difference that section 18 of the Ordinance is applicable only when an attempt to commit an offence punishable under the Ordinance is done, while section 511, P.P.C. Is applicable when an attempt to commit an offence punishable under Pakistan Penal Code is made. Thus section 18 of the Ordinance is not applicable when an attempt is done to commit an offence punishable under Pakistan Penal Code.
When no section from the Ordinance was quoted in the F.I.R., then section 18 of the Ordinance could not be applied or mentioned in it. It is, therefore, strange for me to note that the learned trial Court accepted the final report with such legal defect in the challan. Accepting the final reports of cases submitted by the prosecution as a routine by the trial Courts can never be appreciated because it damages the credibility of the Courts about their competency. The subordinate Courts must not presume that the superior Court would go on ignoring this conduct in future or for ever.
7. The application of section 377, P.P.C. Read with section 511, P.P.C. Has certain requirements.
Section 377, P.P.C. Deals with an offence known as sodomy or buggery and it means anal intercourse between a man and man or between man and woman or between a man and animal.
When the passive agent is not a man or woman or animal but a young boy (termed, as catamite) then this act is termed a pederasty (also spelled as paederasty). In certain countries, this offence is permitted by the Statutes due to which brothels are being run by their owners after getting permission from the Governments for prostitution (zina or adultery) as well as for sodomy. But in Islam, this act is most shameful. It has been made an offence under section 377, P.P.C. Punishable for 2 to 10 years when the same is committed voluntarily by any person. However, if the same offence attracts the requirements of section 12 of the Ordinance, then its punishment can extend to death also. Therefore the Courts must be very careful at the time of accepting the challans, so that no one could be left to rot in the prison if the ingredients of the offence are missing from the F.I.R. Or the final report.
Without going into details, it may be sufficient to point out that in the case of sodomy "penetration", however, little, should be proved strictly to prove this offence. Similarly an attempt to commit this offence is punishable under section 511, P.P.C. Only when an attempt was made to thrust the male organ into the anus of the passive agent. A mere preparation for operation should not necessarily be construed as an attempt.
' The Courts are, therefore, required to go through the proposed evidence produced by the prosecution to satisfy themselves before they accept the challan/final report against any accused in all such matters instead of following the routine of accepting the challans blindly.
8. The learned Vlth Additional Sessions Judge, Hyderabad, had rejected the bail application by presuming that:--- "In this Society nobody will level allegations of sodomy to be committed himself as it will affect one's reputation in the Society and his dignity will be lowered. P.Ws. Muhammad Bachal and Qasim have been examined on the day of lodging of F.I.R., they have supported the prosecution case."
' No doubt, in this Society, nobody will level allegation of sodomy to have been committed upon him but in the present case there is no such charge against the applicants. The allegation levelled against the applicants are of such nature which are not uncommon. The learned trial Court has neglected this reality at the time of passing orders on the bail application. Similarly, it appears that the learned Additional Sessions Judge has not gone through the statement of any of the witnesses recorded under section 161, Cr.P.C. If he had properly read those statements, then, he would not have reached such conclusion.
9. Keeping in view, all the facts and the circumstances as well as the merits of the case, besides the factor of delay in lodging the F.I.R., my tentative assessment is that there are not reasonable grounds for believing that the accused persons had committed an offence punishable under sections 377/511, 34, P.P.C. Read with section 18, Offence of Zina (Enforcement of Hudood)
Ordinance, 1979 and there are sufficient grounds for further inquiry into the guilt of the applicants.
Hence it is their right and not favour or concession that they should be released on bail under section 497, Cr.P.C., if not required in any other 6 cognizable offence provided they furnish solvent surety in the sum of Rs,50,000 each and P.R. Bond in the like amount to the satisfaction of the trial Court.