' Yaqub Khan petitioner sought cancellation of bail of respondents Tahir Mahmood and 5 others granted by the Magistrate. Being aggrieved the petitioner moved a petition for cancellation of bail in the Sessions Court which was rejected on 2-10-1995 by learned Additional Sessions Judge, Khanewal.
2. Yaqub Khan petitioner lodged F.I.R. No,72, dated 31-5-1995 under section 12, Offence of Zina (Enforcement of Hudood) Ordinance VII, 1979 and section 377, P.P.C. At Police Station Chab Kalan, District Khanewal against the respondents alleging therein that on 30-5-1995 at about 11 a.m. He was taken into a house near Mailsi Link Canal Bridge by Iftikhar, Sadaqat and Tahir Mahmood where Mukhtar, Abdul Hafeez and Liaquat All respondents were already present. It is noteworthy that name of Liaquat Ali brother of Sadaqat respondent is not mentioned but it is stated only that elder brother of Sadaqat respondent was also there. It is also alleged that elder brother of Sadaqat asked Yaqub Khan to take off his Shalwar and made him to lay on the ground. It is further alleged that in the first instance Iftikhar respondent committed carnal intercourse with him and thereafter Mukhtar, Hafeez, Tahir and Sadaqat respondent committed carnal intercourse with him and elder brother of Sadaqat respondent stood at guard.
3. Initially the F.I.R. Was lodged under section 377, P.P.C. Section 12, Offence of Zina (Enforcement of Hudood) Ordinance VII, 1979 was added later on but after the completion of investigation the offence ander section 12, Offence of Zina (Enforcement of Hudood) Ordinance VII, 1979 was deleted.
An application for grant of bail for the offence under section 377, P.P.C. Was moved before the trial Magistrate who granted the bail and the learned de Additional Sessions Judge vide impugned order upheld the same.
4. Learned counsel for the petitioner argued that respondents had committed a very heinous offence which falls within the ambit of prohibitory clause of section 497, Cr.P.C.; that the complainant has attributed specific role to the respondents and apart from Liaquat Ali respondent other respondents have committed carnal intercourse with the petitioner.
5. Learne counsel for respondents argued that the investigation of this case was conducted by Ikram Ullah Khan Niazi, D.S.P. And Syed Azmat Hussain Shah, D.S.P. Both have found that the occurrence did not take place in the manner as narrated by the petitioner. According to them Yaqub Khan petitioner claimed himself to be the lover of Tahir Mahmood respondent as both were the school fellows and on the day of alleged occurrence Yaqub Khan petitioner took away Tahir Mahmood with bad intention which fact came to the knowledge of Liaquat Ali elder brother of Tahir Mahmood who alongwith Mukhtar Ahmad and Abdul Hafeez respondents went out in search of Tahir Mahmood respondent and ultimately found him with Yaqub Khan petitioner. He slaped Yaqub Khan. Learned respondents' counsel also argued that on medical examination Sadaqat, Abdul Hamid and Tahir Mahmood were found to be unfit to perform carnal intercourse. According to him, the respondents were involved falsely and maliciously.
6. Arguments heard. Record perused.
7. The alleged occurrence took place on 30-5-1995 at about 11 a.m. And the F.I.R. Was lodged on 31- 5-1995 after an unexplained delay of one day. The medical report of Yaqub Khan petitioner shows only mild redness at 1 'o Clock and 7'o Clock position of anus and there was no laceration on anal and perianal region of the victim. There was no tenderness on local examination. No injury or mark of injury on the whole body was observed by the Medical Officer at the time of medical examination of the petitioner. The medical examination of the victim does not commensurate with the allegations leveled by the petitioner. The petitioner has accused 5 respondents for the commission of sodomy with him. Had five persons committed carnal intercourse with him, the position of anal region of the petitioner would have been entirely different. On medical examination Sadaqat Ali, Abdul Hafeez and Tahir Mahmood respondents were found to be 11-1/2, 13 and 13 years respectively and were found not able to perform sexual intercourse. This aspect of the case gave rise to the controversy between the parties thereupon a Medical Board was constituted and the Board opined that Sadaqat Ali respondent was 13 years or 14 years old. It was also observed by the Board that he being a minor was not in a position to commit carnal intercourse. However, Tahir Mahmood in the opinion of the Medical Board was aged about 14/15 years and Abdul Hafeez respondent was estimated to be 14 or 15 years old and the Board unanimously approved other observations of the Medical Officer.
8. The presence of semen in the anal swabs prima facie is not of much help to the prosecution because the case of the prosecution is that 5 persons committed carnal intercourse with the petitioner. It cannot be said with certainty that whose semen was found in the anal swabs .Of the petitioner. Semen of none of the respondents was sent to the Laboratory for comparison.
9. Record of the case shows that respondents Sadaqat Ali, Abdul Hafeez and Tahir Mahmood were found innocent' during the first investigation and the remaining respondents were found guilty for an offence under section 377, P.P.C. Ikram Ullah Niazi, D.S.P., Mian Channu opined on 26-6-1995 that according to his investigation Yaqub Khan petitioner was a boy of bad habits and was a catamite and as a result of investigation he found that none of the respondents committed carnal intercourse with the petitioner.
10. Keeping in view all the circumstances of the case, I found that the F.I.R. Was registered after an unexplained delay of one day. The ocular account did not commensurate with the medical evidence and that the story of the prosecution was not found completely correct during the investigation. Three accused named in the F.I.R. Were declared innocent and in the opinion of the Investigating Officer the occurrence did not take place in the manner as alleged by the prosecution. The opinion of the police though not binding upon the Court but being adverse to the prosecution created a doubt in favor of the accused, benefit of which was to be given to the accused, even at the stage of bail. Reliance placed upon 1984 SCM R 429 and 521. The opinion of the police was found to be based on sound material.
11. The impugned orders passed by the lower Courts can neither be held capricious, arbitrary nor perverse. The bail once granted by a Court of competent jurisdiction should rarely be cancelled, in an extraordinary situation because valuable right accrues in favor of the petitioner by the grant of bail. There existed no circumstance which would justify the recall of the impugned orders. The impugned orders cannot be termed as the abuse of process of the Court justifying the exercise of powers under section 561-A, Cr.P.C.
' An observation made in this order shall not have any bearing on the facts of the case. The learned trial Judge/Magistrate shall decide the case on its own merits without being prejudiced by the conclusion drawn by this Court, while disposing of the petition for cancellation of bail.
For what has been stated above, this petition has no merits which is accordingly dismissed. .