' Petitioner Mudasar alias Babu, a student of Poly-Technical Institute, is involved in a case registered under section 377, P.P.C. Read with section 12, (Enforcement of Hudood) Ordinance, 1979 at Police Station Saddar Haripur, vide F.I.R. No,187, dated 17-7-2000 at the instance of Mst. Shagufta Shaheen complainant, mother of Naved, a minor boy of 7/8 years of age. The petitioner is accused of having, on 16-7-2000 at unknown time, committed sodomy upon Naved in an under-constructed house situated at a place known as Five Marlas Scheme.
2. The prosecution story as narrated by the complainant is that on 16-7-2000 at about 5 p.m. Her son Naved had gone to a place Mosooma Katha for playing. When the minor returned back he was weeping and also could not walk properly. On inquiry, the minor told her that the petitioner had taken him on his bicycle to the venue of the occurrence where he committed sexual intercourse with him.
3. The petitioner was arrested on 17-7-2000. He submitted an application in the Court of Judicial Magistrate, Haripur for grant of bail which was rejected by order, dated 5-9-2000. The petitioner also moved an application in the Court of Session, Haripur to secure his release on bail but with no success. The petitioner has approached this Court with the similar prayer.
4. In support of the bail application Mr. Akbar Khan Swati, Advocate, learned counsel for the petitioner, has raised the point of delay in lodging of the F.I.R. And the presence of reasonable grounds to believe that the petitioner had been falsely associated with the guilt owing to previous enmity between the two families. Additionally, it was urged that the medical evidence does not support the charge and the case is arguable for the purpose of bail. To substantiate the pleas, my attention has been invited to 1998 MLD 1924 (FSC), PLD 1983 FSC 204 and 1985 PCr.LJ 159.
5. On the contrary, Mr. Muhammad Ayub learned A.A.-G. For the State assisted by Mr. A.R. Chughtai, Advocate for the complainant, has opposed the bail application with the submissions that the petitioner is specifically named in the F.I.R. For the commission of crime; that there is sufficient material on the file to connect the petitioner with the guilt and thus, the petitioner is not entitled for the grant of bail. Reliance has been placed on cases reported in PLD 2000 Pesh. 51, 1998 PCr.LJ 776 (Peshawar) and 1999 SCMR 338.
6. Having heard the arguments and submissions of learned counsel for the parties in the light of the material on record and the case-law cited at the bar I find that on the data available before me sufficient grounds exist to connect the petitioner with the offence he is charged with which falls within the prohibitory clause of section 497, Cr.P.C. It has been vehemently contended by learned counsel for the petitioner that the F.I.R. Has been lodged after considerable delay which tends to suggest that the report was made after consultations and deliberations. The submission is devoid of force. Admittedly, Binyamin father of the victim is employed in Pakistan Army and at the relevant time he was on duty at Risalpur. As no male member was readily available, mother of the victim took the victim to C.M.H., Abbottabad for medical treatment where she made the report. The time was consumed in the process. The delay has been satisfactorily explained. As far as the circumstances of the case are concerned the prosecution version is fully supported by the material on record. An attempt has been made to show that the petitioner has been falsely charged on account of deep-rooted enmity between the two families but there is nothing on the file in support thereof. There is no animosity between the parties; therefore, it is not a case of false implication.
7. The perusal of the record also reveals that the trial in the case had commenced and the next date of hearing has been fixed. In a case where the trial has commenced and the merits of the case are also such from which a case cannot be made out for further inquiry, this Court will not exercise discretion in favour of the petitioner. The application fails which is hereby dismissed.
8. Needless to add that the findings arrived at by this Court are tentative in nature and would not influence the mind of the trial Court while determining the guilt or innocence of the petitioner.