ORDER SHEET

IN THE HIGH COURT OF SINDH,

CIRCUIT COURT, HYDERABAD.

                                              Cr.B.A.No.S-  1256   of   2013

DATE        ORDER WITH SIGNATURE OF JUDGE

31.03.2014.

Mr. Manzoor Ahmed Panhwar, Advocate for applicant.

            Mr. Shahid Shaikh, A.P.G. for the State.

                                    =

MUHAMMAD JUNAID GHAFFAR, J:-             The instant bail application has been filed by applicant / accused against the order dated 14.10.2013, passed by learned Sessions Judge, Tando Muhammad Khan, whereby the bail application of the present applicant was dismissed. The applicant has been charged for committing the act of sodomy and was booked for offence u/s 377, 337-J, 292 and 506 PPC in Crime No.62/2013 registered at Police Station Shaikh Bhirkio.  

2.         I have heard learned counsel for the applicant and learned A.P.G. and my observations are as follows:-

(i)         The learned trial Court has dismissed the bail application primarily on two main grounds. One was, that the Investigating Officer had recovered one mobile phone from the applicant / accused and also secured the memory card of the said mobile in presence of mushirs just after the arrest of the applicant / accused and as per the statement of I.O, the memory card contained the recording in which applicant / accused was seen committing the act of sodomy with the complainant / victim. However, the learned trial Court failed to appreciate to see any further that if the alleged act of sodomy was committed by the applicant then the same must have been recorded by an eye witness / third party as it was not possible that either the complainant and / or the applicant could have recorded the commission of alleged crime. Nothing is available on record in this context and the learned A.P.G. was also not able to give any satisfactory answer to this query and that as to why no effort was made by the I.O. to probe any further about the possibility of any third person being present on the scene. This to my mind makes the case of the applicant as of further enquiry and hence entitles the applicant for grant of bail.

(ii)        Secondly, at the time when the impugned order dated 14.10.2013 was passed, there was only a provisional medical certificate on record dated 12.10.2013 authored by one Dr. Rajesh Kumar, Senior Medical Officer, Taluka Hospital, Tando Muhammad Khan, who after conducting general examination had taken samples of swabs for chemical analysis to be conducted at the laboratory. The Chemical Examiner to the Government of Sindh, Karachi vide its’ report dated 01.11.2013, after examining the external and internal anal swabs of the victim and semen samples of accused, came to a negative conclusion in favour of the applicant. However, on examination of police papers so heavily relied by learned A.P.G, it transpires that the same Dr. Rajesh Kumar vide its’ medico legal final certificate dated 22.11.2013, came to the conclusion on the basis of chemical report of the laboratory that in his opinion the act of sodomy has been committed with victim / complainant. It is surprising to note that at the time of issuing the provisional report, the learned Doctor had not given any findings and had referred the samples for chemical analysis to the appropriate laboratory and after receiving a negative report from the chemical laboratory, the learned Doctor has given a final certificate whereby he has come to the conclusion that the act of sodomy was committed, though before the report of chemical laboratory, the learned Doctor had not arrived at any such final conclusion. In my view, on the basis of this report of the learned Doctor which is in contradiction to the chemical analysis report, the case of applicant is of further enquiry and entitles him for grant of bail.  

(iii)       So far as punishment contained in Section 377 PPC is concerned, the same does not fall within the prohibitory clause of Section 497(i) Cr.P.C as the said offence is punishable with imprisonment for life or with imprisonment of either description for a term which shall not be less than 02 years nor more than 10 years and so also be liable to pay fine. Since at this stage of the case, it cannot be determined exclusively as to whether the applicant would be punished for maximum punishment provided for under this Section, therefore, at the bail granting stage, the Court is obliged to take into consideration the lesser of the two punishments and hence prohibitory clause as referred to above is also not applicable. Same is the case in respect of Section 377-J PPC, wherein a maximum punishment extendable to 10 years is provided for.

3.         In view of hereinabove, I was convinced that the applicant / accused had made out a case for admission to bail and by means of a short order, I had granted bail to the applicant / accused on furnishing surety of Rs.100,000/- (One lac) with P.R. Bond in the like amount before the trial Court.

4.         The above bail order has been passed by me in a shorter format prescribed by the Honourable Supreme Court in its order dated 20.03.2014, passed in Criminal Petition No.203-L of 2014, whereby I have not reproduced the entire contents of the FIR as well as the details of the arguments so raised by the learned Counsel for the applicant as well as learned A.P.G.                        

                                                                                                            JUDGE

Tufail