1. ' Both the petitioners are facing trial before District Criminal Court, Mirpur, for an offence punishable under section 12 of Zina (Enforcement of Hudood) Act, 1985 and section 377 of A.P.C.
2. ' Briefly, the allegation against the petitioners as per F.I.R. Is that on an enquiry by Mr. Aziz-ur- Rehman, A.S.H.O. Police Station Dudyal, Mr. Aziz Ashraf stated on 29-9-1998 that on 28-9-1998 he accompanied by Amjad, when reached at the poultry farm of, Master Arshad, Tariq a labour told him to stay over there because he wanted to go home. The complainant stayed at poultry farm.
3. The petitioners came there and told him that his brother Habib is staying with them at their residence and wants to meet him. At this he accompanied with them but instead of their house they came at Village Ratta and obtained a film from a video centre. The petitioners carried him at Munir's residence but his brother was not there. When he asked about his brother, he was told that he is present at the residence of Matloob. When the complainant asked for water, Munir offered him a drink. He insisted for water but he was threatened to be shot dead. As soon as he took the drink, he started trembling within ten minutes. During this, the petitioners played a Punjabi Film Pajaro Group on V.C.R. Both the petitioners bolted the room from inside and committed sodomy with the complainant one by one. At about 3-30 a.m. When he felt conscious, he found himself in that room, his Shalwar was off which was lying under the bed. He was feeling pain. When, after wearing Shalwar he reached Sandal Bazar he was feeling headache. He laid down on the Charpie.
4. After morning he reached at Ban-Sbeelian by a car to tell the whole incident to his relative Miskeen who was not available. At this he laid down on a bed and remained uncounscious. A lot of people gathered over there who got him awakened and gave him water. He also told the incident to Ch. Mushtaq resident of Thara and Shahan Chaudhry tractor drivers. After some time the police reached over there.
5. ' On this statement a case under sections 12, Z.H.O. And 377, A.P.C., was registered against the petitioners. After necessary investigation, challan under the abovementioned sections was presented in the District Court of Criminal Jurisdiction, Mirpur on 3-12-1998.
6. ' The petitioners moved a bail application before District Criminal Court, Mirpur which was rejected on 30-11-1998. Hence, the bail application has been presented in this Court which is the subject- matter of this order.
7. ' Mr. Abdul Majeed Mallick, the learned counsel for the petitioners argued that it is a case of no evidence at all. The pro.- evidence is fabricated and concocted, despite this the accused are not connected with the offence. He also contended that no F.I.R., was lodged by the complainant, but the police recorded the statement of the complainant at its own. It was also alleged by the learned counsel for the petitioners that the complainant stated before police that first of all he described the incident Of Chaudhry Mushtaq and Shapaul Chaudhry, but in his statement under section 164, Cr.P.C he did not mention about Mushtaq and Shahpaul, rather he stated that he told Shahban and Aurangzeb about the occurrence. He also pointed out that no sign of any injury or semen on the body or clothes of the complainant were found, He further submitted that report of Chemical Examiner is also not reliable because it has been written by hand. Furthermore, the report does not disclose whether the semen is of the human body or of an animal. According to him, it is yet to determine whether it is a male semen or female semen. If it is a male semen then it is to be further identified that whether it is petitioner's semen or someone's else. It was also contended by the petitioner's counsel that according to the victim he remained unconscious and before becoming .Conscious if sodomy was committed with him then how he came to know that during his period of unconsciousness who committed the offence. He also criticised the medical report and submitted that the victim was medically examined before expiry of 24 hours, therefore; the Medical Officer unnecessarily reported that the sodomy cannot be overruled altogether as more than 24 hours have passed. He maintained that the medical report does not disclose about the administration of any drug or drink. The learned counsel for the petitioners read over the statement of prosecution witnesses Tariq and Kala and tried to prove the contradiction between the complainant's statement and the statement of P.Ws. He further argued that the statement of P.Ws. Shahban and Aurangzab were recorded on 1-11-1998 after a period of one month and two days of the occurrence, thus, have no value and cannot be relied upon. During the course of arguments, Mushtaq Hussain P.W.7 appeared before the Court, who filed an affidavit and stated that no semen-stained bed- sheet was recovered in his presence and police obtained his signature only. The learned counsel for the petitioners has drawn our attention toward the statement of the petitioners-accused under section 242 of Cr.P.C. Wherein it has been alleged that the petitioners made the victim unconscious and then committed sodomy with him. Finally, it was submitted by the learned counsel for the petitioners-accused that the petitioners are behind the bars for the last four months and the challan has also been presented before the trial Court, therefore, the petitioners may be released on bail. In support of his arguments, he relied upon 1986 PCr.LJ 774 and 1988 PCr.LJ 557.
8. ' In reply, Mr. Masood Khalid, the learned counsel for the complainant, vehemently contended that the learned counsel for the petitioners has discussed and argued the merits of the case, which cannot be allowed at the bail stage. He also argued that at the bail stage, the statement under section 161, Cr.P.C. And statement under section 164, Cr.P.C., cannot be compared and if, for the sake of arguments, at all it can be compared even though the compression does not damage the case of prosecution, He further submitted that prima facie the petitioners are connected with the offence and death penalty has been ,provided for the offence. According to him, the petitioners have committed sodomy with a 15 years old boy which, should not be taken lightly. He maintained that in such-like case the bail may be discouraged. In support of his contention, he cited 1978 PCr.0 605 and PLD 1978 Sc (AJ&K) 89.
9. ' Mr. Muhammad Mushtaq Chaudhry, the learned Additional Advocate General, supported the arguments of the complainant's counsel and contended that the petitioners are connected with the offence in the light of the record and evidence, In the light of the arguments addressed at the bar, I have carefully examined the record of the case and the authorities cited by the learned counsel for the parties and arrived at the conclusion that there is sufficient material on the record to connect the petitioners-accused prima fade with the commission of alleged offence. The statement of the victim is very much clear in this respect that the petitioners-accused committed sodomy with him one by one, thus, prima facie the offence was not committed during the course of unconsciousness. The statement of the complainant also lends support from the medical report by which the act of sodomy has not been ruled out but it has also been contended that there is a mark of bruise over the buttocks on both sides, The report of Chemical Examiner also shows that the bed-sheet used during the course of crime and a piece of cloth by which the body was cleaned are stained with semen, At this stage it cannot be held that the prosecution must prove the nature, type and group of semen. The other incriminating evidence like statements of prosecution witnesses, recovery of V.C,R. With film, recovery of -semen-stained bed-sheet and a piece of cloth, the recovery of weapon used for the abduction of the victim, prima facie prove that the victim was subjected to sodomy by the petitioners-accused, The names of the petitioners-accused were promptly stated by the victim before police and after that he again narrated the whole story of incident before a Magistrate in his statement recorded under section 164, Cr.P.C. Both the petitioners-accused are medically fit to perform sex and not impotent.
10. As far as the other arguments of the learned counsel for the petitioners-accused arc concerned, I very much agree with this contention of the learned counsel for the complainant that the deeper appreciation of the merits of the case is not required at the bail stage. The detail scrutiny about the minor discrepancies in the statement of the prosecution witnesses can also not be discussed in a bail petition.
11. ' During the course of arguments P.W.7 Mushtaq Hussain filed an affidavit and stated that the bed- sheet was not recovered in his presence, but he only signed the recovery-memo, At this stage, we refrain to pass any comment upon this fact but suffice to note that this affidavit of P.W.7 does not lend any support to the petitioners-accused because according to the prosecution said recovery was also witnessed by complainant and P.W,20 Muhammad Amin Inspector Police, It will not be out of place to mention that the petitioners-accused are charged with an offence for which punishment of death or rigorous imprisonment for a term which may extend to 25 years has been provided. Therefore, the case of the petitioners-accused comes within the prohibitory clause of subsection (1) of section 497, Cr.P.C.
12. In view of the submissions of the learned counsel for the complainant/State and the facts and circumstances discussed above, the reasonable grounds do exist to believe that the petitioners are involved in this case. Therefore, the trial Court exercised its discretion in a judicious manner, which does not call for any interference. I do not want to discuss the authorities cited by the learned counsel for the parties in detail because every criminal case has its own facts.
13. ' The upshot of the above discussion is that the bail petition has no merits, which is hereby dismissed.
14. Bail ,