HAMAD vs State S — 2023 MLD 2082 ISLAMABAD

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HAMAD VS State S. 497(2)---Penal Code (XLV of 1860), Ss. 377-B & 506(ii)---Anti-Rape (Investigation and Trial) Act (XXX of 2021), Ss. 8(1)(viii) & 21---Sexual abuse of a minor---Bail, grant of---Further inquiry---Sexual abuse and its attempt---Distinction---Compromise between parties---Allegation against the petitioner was that he sexually abused minor son of the complainant in his shop---Validity---Record revealed that no medical examination of the minor boy was conducted during the course of investigation as the allegation was only to the extent of mere attempt---Language used in the definition of sexual abuse under S. 377-A, P.P.C., covered all kinds of acts, including but not limited to, fondling, stroking, caressing, exhibitionism, or any obscene or sexually explicit conduct or simulation of such conduct with the victim who was less than eighteen years of age, however, it provided the sentence of 20 years, which could not be awarded for a period of less than 14 years and fine---Said aspect, at one side, gave wide discretion to Trial Court to consider the allegation in the light of available evidence and to decide the case whereas, from another angle, such sentence was not proportionate to the case in which any act less than attempt was prima facie visible, which could only be verified after recording of evidence in trial---Even the investigation report disclosed allegation of kissing the minor child by the petitioner, therefore, when exact language of definition of offence of sexual abuse was placed in juxtaposition, ground of further inquiry in terms of sub-clause 2 of S. 497, Cr.P.C, emerged---Besides, there was compounding statement of the complainant also, which created further exception in favour of the petitioner, however, the offence under S. 377-A, P.P.C., was not compoundable entailing capital punishment; and granting bail on the basis of compromise would be against the public policy as well as law, but the circumstances suggested that no useful purpose would be achieved by placing the petitioner behind the bars, especially when investigation was complete and petitioner was no more required for the purpose of investigation---Effective measures could be passed under different provisions of Anti-Rape (Investigation and Trial) Act, 2021 ('the Act 2021')---Purpose of Sexual Offence Prevention Order (SOPO) was to protect the public, prevent further sexual offences and to support the rehabilitation and management of sexual offenders, aimed at striking balance between safeguarding potential victims and respecting the rights of the individual---High Court directed the concerned SHO/I.O to adopt all such necessary measures/actions in terms of Ss. 8(1)(viii) & 21 of the Act 2021 for benefits/safeguard of victim and his family---Bail was allowed to the petitioner/accused, in circumstances.

HAMAD vs State S — 2023 MLD 2082 ISLAMABAD

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