Heard.
2. Muhammad Mukheeb, Muhammad Imran, Amar Shahzad, Amir Mehmood and Muhammad Shakeel have applied for their after arrest bail in the case bearing F.I.R. No,80, registered with Police Station, Kahuta, on 17-3-2002, under sections 377 511, 355/294, 506/342, Pakistan Penal Code read with sections 12 and 18 of the Offence of Zina (Enforcement of Hudood) Ordinance (VII of 1979).
3. The allegation against the petitioners was that at about 5-00 p.m. on 19-2-2002 in the area of forest within the jurisdiction of Police Station, Kahuta, they carried Asghar Shahzad, Muhammad Zafar and Muhammad Mukhtar in the forest with intention to commit carnal intercourse and at pistol-point they got removed the clothes of the victims and obtained their photographs and threatened to kill in case the matter is reported to anybody and when they attempted to commit sodomy, on raising hue and cry of victims due to resistance by Mukhtar victim pistol in the hand of Aamer Mehmood fell down and Mukhtar after carrying the pistol ran away on which the other victims also ran away. However, the assailants apprehended the victims and obtained their pistol.
So on application moved by Subedar Muhammad Shah Room the abovesaid case was registered.
4. Learned counsel for the petitioner submitted that the parties have patched up the matter outside the Court and in this connection the affidavit sworn by the .deponents/eye-witnesses are on the police file regarding which the Investigating Officer has recorded the statements of the parties, which fact has been confirmed by all concerns in attendance and also by the learned counsel for the complainant, that the parties have patched up the matter.
The perusal of the police file also reveals that the prosecution witnesses have presented their affidavits and that to arrive at compromise their statements have been recorded.
5. Despite this the question for examination is as to whether section 12 of the Offence of Zina (Enforcement of Hudood) Ordinance (VII of 1979), in view of the circumstances of this case would be attracted or not. This section speaks about kidnapping or abducting any person, in other words the taking away of any person in order that such person may be subjected, or may be so disposed of as to be put in danger of being subjected, to the unnatural lust of any person or knowing it to be likely that such person will be so subjected or disposed of. The words "in order", "may" and "will" have been used in this section. The words "may" and "will" are not of so significance but the words "in order" are word consideration because these words certainly means that the person being subject to unnatural lust is the part of the transaction, otherwise if there is mere taking away of any person or there is an attempt towards unnatural lust the transaction would not be complete and being so the offence' under section 12 of Zina Hudood Ordinance VII of 1979 would not be attracted and that it would be simply a case of an attempt to commit sodomy attracting the provisions of section 377, P.P.C. read with section 511, P.P.C.
6. It appears from the contents of the F.I.R that the assailants remained busy in getting the clothes of the victims removed and having their photographs. They might have spoken dialogue indicating an attempt towards commission of sodomy but their act was otherwise, therefore, basically it appears that the provisions of section 355, P.P.C. are attracted in this case and that the said offence does not fall within the prohibitory clause of section 497, Criminal Procedure Code. Even otherwise, the Investigating Officer in attendance disclosed that camera film could not be developed for the purpose of printing or the photographs, therefore, it is a case of further inquiry.
7. In view of above circumstances the petitioners namely Muhammad Mukheeb, Muhammad Imran, Amar Shahzad, Amir Mehmood and Muhammad Shakeel are admitted to bail subject to their furnishing surety bonds in the sum of Rs,50,000 each with one surety each in the like amount to the satisfaction of the learned trial Court. They are directed to attend the trial Court on each date till the final disposal of this case.
Petition is hereby accepted.