' The petitioner Ghulam Mujtaba is sole accused of case F.I.R. No,170 of 1999, dated 17-3-1999 registered with Police Station City Arifwala District, Pakpattan Sharif under section 377, P.P.C., and section 12 of the Offence of Zina (Enforcement of Hudood) Ordinance (VII of 1979) at the instance of Abdul Rashid, the father of victim namely Aftab Rashid.
2. According to the prosecution story, the complainant Abdul Rashid is serving as Supervisor in Telephone Department, Arifwala, while his son namely Aftab Rashid aged 10/11 years student of sixth class was flying kite at the roof of telephone building, on 16-3-1999 at 4-00 p.m. When Ghulam Mujtaba, accused also alighted the roof of the said building. The accused forcibly caught hold of the victim, removed his Shalwar and then committed sodomy with Aftab Rashid victim. On the hue and cry of the victim his brother namely Muhammad Shoaib, Azam and Muhammad Saeed were attracted to the spot and had seen the occurrence. The accused fled away from the place of occurrence on the arrival of the witnesses. Petitioner's bail petition has been dismissed by the learned Magistrate as well as by learned Additional Sessions Judge, Arifwala; hence this petition.
3. The learned counsel for the petitioner has argued that during investigation it has been found that section 12 of , the Offence of Zina (Enforcement of Hudood) Ordinance (VII of 1979) is not attracted; hence it has been deleted, further argued that the petitioner has been found innocent during the investigation conducted by. The local police and the same has been verified by the D.S.P./S.D.P,O.; further argued that the report of the chemical examiner is also negative; hence prima facie no offence under section 377, P.P.C., has been made out to connect the petitioner with the incident; further argued that in fact the petitioner has been involved due to party fiction in the telephone department; further argued that there is delay of lodging the F.I.R., of one day; further argued that the petitioner is an employee of Telephone Department and there is no chance of his ascendance; further argued that one of the eye-witness named in the F.I.R., i,e,, Muhammad Saeed has sworn an affidavit, exonerating the petitioner, therefore, the petitioner is entitled to the concession of bail.
4. Learned counsel appearing on behalf of State has vehemently opposed the grant of bail while arguing that, the petitioner is habitual offender and case F.I.R. No,84 of 1985 under section 377, P.P.C., had earlier been also registered against him with Police Station Arifwala the case of the petitioner falls within the prohibitory clause; further argued that though the report of the chemical examiner is negative but still the medico-legal report supports the prosecution version regarding commission of offence under section 377, on the person of Aftab Rashid, victim; hence the petitioner is not entitled to the concession of bail.
5. Learned counsel for the petitioner has placed on record certified copy of the judgment passed by the Additional Sessions "Judge, Pakpattan Sharif, dated 6-1-1986, to show that the previous case F.I.R. No,84 of 1985 was also registered against the petitioner with mala fide and ulterior motives and the petitioner was acquitted by the Trial Court in exercise of its power under section 265-K, Cr.P.C.
6. I have considered the arguments of the learned counsel for the parties, no doubt the petitioner is charged of offence under section 377, P.P.C., but the report of the chemical examiner is negative.
The petitioner has already been acquitted in the earlier case by the Trial Court in exercise of its power under section 265-K, Cr.P.C. The allegation against the petitioner is not supported by the report of chemical examiner while the medico-legal report is not conclusive. The question whether the petitioner has committed offence under section 377, P.P.C., is yet to be determined at the trial. It is well-established law that benefit of doubt even at bail stage goes to the accused. The petitioner is an employee of P.T.C. Department, hence there are rare chances of his ascendance.
' In the circumstances, the petitioner is granted bail subject to furnishing his bail bonds in the sum of Rs,5,00,000 (five lacs) with two sureties each in the like amount to the satisfaction of the Trial Court/Magistrate, Arifwala.