Saeed Ahmad complainant aged 12 years got recorded F.I.R. No-128, dated 12-6-1995 at 5-30 p.m.
Under section 377, P.P.C. At Police Station Pakka Laran, District Rahimyar Khan with the allegation that at 2-00 p.m. He was standing close to his house from where Qasim and Shabbir petitioners- accused took him to the canal. While taking the bath in the canal water both Qasim and Shabbir accused persons forcibly committed sexual intercourse against the order of nature with him. His alarm attracted War, Asghar and his father Naseer Khan P.Ws. On seeing the said P.Ws. Both the accused made good their escape. The police has added Article 12 of the Offence of Zina (Enforcement of Hudood) Ordinance, 1979 in view of the removal of the victim from one place to the other place. Both the petitioners were arrested on 15-6-1995 whose bail plea has been rejected by the Additional Sessions Judge, Liaquatpur. They have filed this petition to try their luck to be admitted to bail.
2. I have heard the learned counsel for the petitioners as well as learned State Counsel and gone through the record before me. In the order, dated 20-7-1995 passed by the lower Court it is specifically mentioned that all the three witnesses have submitted their affidavits exonerating the petitioners-- accused. No weight was given to the affidavits on the ground that the same would be considered during the trial. My view is that the said opinion of the Additional Sessions Judge has no blessing from the taw of the land. The case --law is not bereft of the judicial decisions to the effect that where the material witnesses have sworn in their affidavits exonerating the accused who by appearing before the Court own the same, the accused are entitled to be admitted to bail as in such a state of affairs the case of the prosecution against the accused becomes that of further inquiry. It has been held in Muhammad Chuttal and another v. The State 1994 M LD 886 that the affidavits of the witnesses exonerating the accused disowning the prosecution case makes the case that of further inquiry on the basis of conflict between the two sets of statements. Naseer Khan father of Saeed Ahmad victim/complainant is present in the Court who has been identified by the Police Officer to be the original person. Naseer Khan father of the complainant has produced the other two P.Ws. Namely Zafar son of Jam Allah Ditta and Asghar son of Rasool Bakhsh. All the three P.Ws. Naseer Khan, Zafar and Asghar have expressed that they had filed the affidavits before the lower Court and have today, no E objection if both the petitioners-accused are admitted to bail.
It has been eld in Syed Zahid Ali v. The State 1993 PCr.LJ 1489 that when the main witnesses in the case come forward and give affidavits not supporting their earlier version recorded by the police under section 161, Cr.P.C., the accused in that case should be released on bail because there would be no likelihood of the accused being convicted in that case, but some proof must be produced before the Court in regard to authenticity of such affidavits. In the instant case even today all the three witnesses namely Naseer Khan, Zafar and Asghar are present and have supported the cause of both the petitioners-accused by exonerating them. Consequently learned State Counsel has no option but to scrupulously concede 1 that in the circumstances the case has become that of further inquiry. I, therefore, hold that both the petitioners-accused are entitled to be admitted to bail.
3. For what has been said above, I accept this application and admit both Qasim and Shabbir petitioners-accused to bail in the sum of Rs.20,000 each with one surety each in the like amount to the satisfaction of the A.C./Area I Magistrate. Liaquat Pur who after attestation of the bail bonds shall transmit the same to the Court of the Additional Sessions Judge, Liaquat Pur to be retained in his office and to be added to the judicial file in case the challan is submitted and thereafter sent up to his Court as contemplated under section 190(3), Cr.P.C.