' Having been involved in case registered vide F.I.R. No,292 on 3-3-1999 under section 377, P.P.C.
Read with section 12 of Offence of Zina (Hudood) Ordinance, 1979 in Police Station Cantt: Abbottabad, the petitioner applied for grant of bail in the Court of learned Judicial Magistrate, Abbottabad but his application was turned down vide order, dated 11-3-1999. He then moved the Court of learned Sessions Judge, Abbottabad but his application was rejected vide order, dated 18- 5-1999. The petitioner has now moved this Court for his release on bail.
2. Taj Muhammad, complainant, reported that his son, namely, Arsalan aged 7/8 years was playing near his house. In the meanwhile, accused-petitioner Wajid Hussain came there and deceitfully took him away to a ,deserted place, namely, Jakkar Bandi where he was subjected to sodomy. The victim on his return to his home narrated the occurrence to his mother. Since the complainant was not present in the house at that time, he was informed of the occurrence by his wife on the following day. Hence he lodged the report, The victim was sent to hospital for medical.
3. Mr. Mehdi Zaman Khan, Advocate, the learned counsel representing the petitioner argued that there was delay of more than 24 hours in lodging the report. The Doctor who examined the victim did not give any mark of identification of victim. There is no witness to the occurrence. Section 12 of Offence of Zina (Hudood) Ordinance, 1979 is not applicable and accused-petitioner is less than 16 years of age and is a student of school. Hence be released on bail.
4. Mr. Muhammad Akmal Malik Advocate, the learned counsel representing the complainant and Mr. Ejaz Muhammad Khan Additional Advocate-General representing the State opposed the grant of bail on the ground that there was no enmity or between the parties and there appear no reasons as to why a veryzynung boy of 6/7 years should falsely involve. The accused petitioner for such a genius offence About the delay in lodging the F.I.R., it was, argued, that the father of the minor, has explained in the F.I.R. Was not present in his house when the alleged occurrence took place. On his return, the mother of the victim narrated the story to him on which the report was immediately lodged, so the delay has been reasonably explained in the text of the F.I.R. The medical report fully supports the case of prosecution. As per medical report partial penetration has taken place. The report of the Chemical Examiner also supports the case of prosecution. No enmity exists between the parties and, therefore, it is not a case of false implication.
5. I have heard the learned counsel for the parties and perused the record carefully.
6. The occurrence, took place on 2-3-1999 at 'digar vela' and the victim of sodomy a minor boy of 7/8 years reported the matter to his mother. Since his father was not available at that time, hence on his return the mother of the victim narrated the, story to her husband and thereafter the report was lodged. The delay in lodging the report has been plausibly explained. There is no enmity between the parties so as to make such allegation which can also stigmatize the complainant side and, therefore, it is not a case of false implication. The medico-legal report supports the case of prosecution. As per report of the doctor partial penetration had taken place. The Chemical Analyst report also supports the case of prosecution. Merely, because the accused-petitioner is 16 years of age would not make him entitled to the grant of bail automatically. Reliance is placed on Muhammad Shaib v. Shafqat Hussain alias Shaukat and another 1997 SCM R 338. I, therefore, see no reasonable grounds to enlarge the petitioner on bail. His bail application is dismissed. However, the prosecution is directed to submit complete challan within 15 days and the trial Court is also directed to conclude the trial within a period of 3 months, failing which the petitioner shall be at liberty to move the trial Court for his release on bail.