Criminal Miscellaneous No,1 of 1995 Allowed and disposed of.
' Petitioner Muhammad Rafiq 50, through this petition has sought after-arrest bail in a case registered against him vide F.I.R. No,197/95, dated 21-6-1995 under section 12, Offence of Zina (Enforcement of Hudood) Ordinance VII, 1979 read with section 377, P.P.C. At Police Station Farid Town, Sahiwal.
2. Complainant Muhammad Qasir 9/10, a student of 6th class, has alleged in the F.I.R. That he was sleeping in the house of his maternal-uncle situated in Chak No,85/6-R, during the night of 21-6- 1995 at about 1-30 a.m. Awoke up by a knock at the door. He opened the door and saw that Muhammad Rafiq petitioner a neighbourer, who was known to the complainant enquired about his maternal-uncle Abdul Rehman and .The complainant replied that he was sleeping in the house of Master Muhammad Ashraf. The complainant was about to close the door when all of a sudden Muhammad Rafiq petitioner brought out a pistol and threatened him to kill him in case he makes noise who forcibly took away the complainant in a Suzuki Car No,7258/SLG and had taken to a vacant house of the petitioner situated at Noci Shah Road. It is alleged that the petitioner forcibly committed sodomy with the complainant. He felt severe pain.
' Muhammad Arshad and Muhammad Raman maternal-uncle of the complainant reached at the spot and saw the occurrence and tried to apprehend the petitioner, but they could not succeed on account of threat of the petitioner. The matter was reported to the police on the same day at 5-50 a.m.
3. The petitioner was arrested on 22-6-1995. After thorough investigation the petitioner was found innocent and a discharge report was prepared which was accepted by the learned Magistrate who passed the discharge order on 23-7-1995. Consequently he was released from the jail. On 3- 10-1995, the petitioner was arrested by the police and fresh investigation was conducted. He was found guilty by Mr. Pirzada Shah Muhammad, D.S.P., Chichawatni. The learned Additional Sessions Judge had rejected after-arrest bail application of the petitioner vide his order dated 16-7-1995.
Hence this petition was moved by the petitioner.
4. Learned counsel for the petitioner contends that primarily the investigation was conducted by Arshad Ali, A.S.-I. And thereafter by Muhammad Ashraf, S.-I. Who found the case against the petitioner as doubtful. Then Muhammad Ghani Khatak, .Inspector/S.H.O. Investigated the case and found the petitioner guilty. Thereafter the investigation was conducted by the D.S.P. City, Ali Ahmad Dogar who declared the petitioner innocent and found the case false. Again D.S.P., C.I.A.
Investigated the case by the orders of M.I.C., Multan. He also declared the petitioner as innocent.
Then as a result of the investigation, discharge report was prepared and the petitioner was discharged by a learned Magistrate vide his order dated 23-7-1995. The last investigation was conducted by Mr. Pirzada Shah Muhammad, D.S.P., Chichawatni who found the petitioner guilty and arrested the petitioner and submitted the challan against the petitioner to the Court. According to the learned counsel there are different opinions of different Police Officers for and against the petitioner. It is also argued that medical report does not show that at the time of examination there was any bleeding on the person of victim and the report of anal swab is negative. The clothes of the victim were also not taken into possession by the Medical Officer or the Investigating Officer.
The swa bs were not found stained with semen, according to the Chemical Examiner report. It is vehemently argued that petitioner is an aged married man having no such previous record. He has been made a victim of political rivalry. He has contested number of elections and the complainant and his family have relations with his political opponents. It is further contended that the facts of the case required (sic) petitioner with the commissionof offence.
5. Learned counsel appearing on behalf of the State and the complainant vehemently opposed the grant of bail to the petitioner and have contended that the petitioner was found guilty by two Investigating Officers and the result of final investigation is that he has been challaned. The copies of the statements recorded under section 161, Cr.P.C. Have been delivered to the petitioner to face trial; that none would like to ruin his future and suffer agony and shame in the society by levelling such an accusation. It is further contended that the absence of semen in the anal swab do not make a case doubtful because the victim might have passed the stools before the examination and that the police was competent to investigate the case after passing of the discharge order by the Magistrate. Warrants of arrest of the petitioner were obtained by the Investigating Officer on 2- 10-1995 and the petitioner was arrested by the police on 3-10-1995. It is further contended that ipsit dexit of the police is not binding upon the Court and the petitioner is not entitled to the grant of bail in these circumstances of the case.
6. I have heard the learned counsel for the parties at length and have gone through the record carefully. It is admitted fact that the petitioner was got discharged by the police. The complainant filed a revision against the discharge order passed by the learned Magistrate but withdrew the same on 4-10-1995, hence the discharge order is in the field. The petitioner was found innocent by a number of Investigating Officers and a few of them had also found him guilty. The Investigating Officers are not unanimous about the guilt of the petitioner and principle of divergence of opinion is applicable in this case. After passing of discharge order by the competent authoiity., the police has not collected any fresh material whatsoever. According to the police record the victim was admitted in the hospital who was operated upon.For the complications created by the act of sodomy. The learned counsel for, the complainant has strong criticism about the conduct of the Medical Officer, D.H.Q. Hospital, Sahiwal who initially examined Muhammad Qaiser victim' and on the other hand the petitioner's counsel has stated a long tale about the conduct of the 'doctor who has operated upon the victim. Learned counsel for the petitioner contended that Dr. Nasir Mahmood has found the victim habitual and in the opinion of the doctor act of sodomy in the present case was doubtful. Dr. Sohail who operated upon the victim is alleged to be inimical towards the petitioner and according to the learned counsel for the petitioner his reports are fake.
So both the parties have their own grievances against the doctors. The fact remains that the two doctors are not unanimous. Chemical Examiner has found the anal swabs were not stained with semen and there is no evidence available on record that the complainant had passed stools prior to his medical examination. The petitioner is an aged man, is in the lock-up and no more required for further investigation.
7. The Honorable Supreme Court has held in 1984 SCM R 429 and 521 that the opinion of the police declaring the petitioner as innocent being against prosecution creates a doubt which should go in favour of the petitioner at the stage of bail. Mere delivery of the copies under section 161, Cr.P.C. To the petitioner would not be sufficient to reject the bail application because once the Court comes to the conclusion that it is a case of further inquiry, the petitioner has a right to be released on bail irrespective of the fact that the trial is in sight. The practice of the Court would not be preferred against the enforcement of a right.
8. For what has been stated above, I hold that there does not exist a reasonable ground to believe that the petitioner has committed a non-bailable offence. His case falls within the purview of section 497(2), Cr.P.C. And consequently he is allowed bail provided he furnishes bail bond in the sum of Rs,1,00,000 with one surety in the like amount to the satisfaction of A.C./Duty Magistrate, Sahiwal.
9. All these observations are tentative in nature and would not have any effect at the stage of trial.
10. Learned counsel for the complainant submits that the trial Court be directed to expedite the trial to which the learned counsel for the petitioner has no objection. Therefore, I direct that the trial Court shall conclude the trial within three months from the receipt of this order by him.