MIAN NAZIR AKHTAR, J.- The petitioner has applied for grant of bail in a case registered against him and others vide FIR No. 665, dated 26.9.1998 for an offence u/S. 12 of Ordinance VII of 1979 read with Section 377 of the PPC at P.S. Chunian District Kasur.
2. The complaint was lodged by Maqbool Ahmad who stated therein that on 23.9.1998 he went to sleep at about 10.00 p.m. And got up at about 1.00 a.m. And found his son Ghaus Ali missing from his "Charpai". He made a querry from his wife who informed him that Ghaus Ali was called by the neighbour Muhammad Tariq, (the present petitioner). He alongwith his brother-in-law Ghafoor went in search of Ghaus Ali. When they reached Haveli Tubewell they found Ghuas Ali lying unconscious on a "Charpai" and his Shalwaar was removed. He regained consciousness on 24.9.1998 at 5.00 p.m. And informed him that he was called by the petitioner at Haveli Tubewell where Shabir Ahmad co-accused was present and after sometime Amjad Ali, co-accused also came there; that Tariq and Shabir Ahmad went to bring tea from hotel of Muhammad Ashiq; that Shabir Ahmad returned but Tariq did not, whereupon he (Ghaus Ali) went and called him back; that all the for persons took tea together and after sometime he became unconscious and then Muhammad Tariq, petitioner and his co-accused subjected him to sodomy.
3. I have heard the learned counsel for, the petitioner and the State. The material on the record shows that originally it was Muhammad Tariq, petitioner who had called Ghaus Ali from his house.
Subsequently, he was found by the complainant lying unconscious in the Haveli Tubewell. Ghaus Ali was medically examined by the doctor on 26.9.1998 and the result of the anal swabs is positive. In his statement u/S. 161 of the Cr.P.C. Ghaus Ali, the victim, had supported the story narrated in the FIR.
He clearly alleged that the petitioner and his co-accused had forcibly removed his Shalwar and committed unnatural offence with him. He also stated that he was feeling great pain, It appears that subsequently the accused persons managed to win over the complainant who made a supplementary statement in which he tried to exonerate the accused persons. However, he stated that when he found his son, his Shalwar was removed and he was lying naked in an unconscious condition. He also confirmed that after regaining consciousness the victim told him that the petitioner, his co-accused Amjad and Shabir Ahmad had taken tea together though he added that he did not know as to what had happened. He had at least confirmed his presence with the petitioner and the other co-accused during the night time. In his own supplementary statement Ghaus Ali stated that Tariq had called him from the house; that Shabir Ahmad brought tea in the Haveli Tubewell of Tariq where Amjad co-accused had also come; that all of them took tea and that he became unconscious and did not know as to what had happened to him. However, i.e added, Thus all the circumstances of the case show that the victim was called from the house during night time and he was made to take tea containing some intoxicant; that when he became unconscious he was subjected to sodomy by the petitioner and his co-accused. The mere fact that the petitioner has been found to be innocent by the police is not sufficient, in the circumstances of the case, to allow bail to him. The petitioner's learned counsel has relied on the judgment in the cases of "Muhammad Ibrahim alias Papu v. The State" (1996 P.Cr.L.J. 685) and "Muhammad Rafique v. The State" (1996 P.Cr.L.J. 1745) which proceed on their own distinguishable facts. In the case of Muhammad Ibrahim alias Papu, the Court held that mere seminal stains on the clothes of the victim in the presence of sperms around the anal area did not mean that the essential ingredient of the offence, i.e. Penetration was satisfied. To my mind, this appears to be going deep into the merits of the case which has to be avoided at the bail stage. In the case of Muhammad Rafique anal swa bs were not found to be stained with semen by the chemical examiner.
4. For the foregoing discussion, I do not find any merit in this petition which is dismissed.