' MUHAMMAD ALAM KHAN, J.-Zahir Muhammad petitioner has filed the instant application requesting for the bail in case F.I.R. No, 123 dated 2-3-2007 under section 377, P.P.C. Read with section-12 of the Offence of Zina (Enforcement of Hudood) Ordinance, 1979 (Ordinance No, VI of 1979).
2. Briefly narrated the facts of the case are that Umar Hayat aged about 12 years resident of Mirwas Charsadda Road, Mardan, on 2-3-2007 at 1500 hours lodged a report in the Police Station Cantt: Mardan to the effect that on 2-3-2007 at1030 A.m. He was going from New Adda to his house situated at Mirwas Charsadda Road, Mardan. When he reached near the mosque of Mirwas there he found on Zahir Muhammad son of Muhammad Shaffie . Resident of Dheri Mirwas alongwith two unknown persons, they caught hold of his hands and dragged him to the sugarcane crop situated near Tauheed Colony near Aman Flour Mills Charsadda Road Mardan. These two unknown persons committed sodomy with the complainant, while Zahir Muhammad the present petitioner was waiting for his turn outside the field. In the meantime, the complainant found his way towards the road and ran away to his house as his father was working on daily wages so he was not present in the house when he came, the complainant narrated the story to his father and consequently he lodged the F.I.R. The local Police recorded the statements of P.W. As well as Umar Hayat victim of the offence under section 164 Cr.P.C. On 3-3-2007 who narrated the story before the judicial Magistrate-X Mardan as underp;-- ' "statement of Umar Hayat son of Hayat Khan aged about 12/13 years r/o Mirwas Killi on oath under section 164, Cr.P.C."
' Stated that I have charged the two unknown accused for committing sexual intercourse with me.
The accused were known to me by face. Later on I recognized them in my village and their names are Jawad son of Israr and Noorul Amin son of Faqir Khan. On my pointation they were arrested by the local Police. I charge accused Zahir alongwith the aforesaid persons for the commission of offence.
' Certified under section 164, Cr.P.C.
RO&AC Dt:3-3-2007 (Sd.)
' Ikramullah J.M.X, Mardan.
' Thumb impression ' Umar Hayat complainant/viCtim ' Identified by Hayat Khan father of the ' Complainant ' NIC No, 16101-7552728-7"
3. The petitioner submitted an application in the Court of Mr. Ghulam Abbas, Civil Judge/Judicial Magistrate-Ill, Mardan for post arrest bail, which was rejected on 16-3-2007 thereafter the petitioner moved an application to Mr. Badar-ud-Din, Additional Sessions Judge-Ill, Mardan and the same too was rejected on 20-4-2007, hence, the present bail application.
4. Sardar Ali, brother of the petitioner submitted that his brother was taken by the local Police and the assurance was given that if he disclosed the names of two unknown persons who committed sodomy with the minor Umar Hayat he will be fore-given but this undertaking was neither honoured by Police nor by the complainant's father and the present petitioner was also involved in the commission of the offence.
5. On the other hand complainant's father namely Hayat Khan narrated story as given in the F.I.R.
6. Mr. Muhammad Saeed Khan Shangla, Additional Advocate General submitted that the occurrence is broad- day-light occurrence, the swab taken from the anus of the victim were sent to the Chemical examiner and the FSL report is in positive which connect the accused with the commission of the offence. Elaborating his arguments he further submitted that although the present petitioner is charged for guarding and waiting for his turn to commit sexual intercourse with the victim and to satisfy his lust, but fortunately the victim found way and he made good his escape, so he too was privy to the commission of the offence under the provision of section 377 P.P.C. Read with 12 of the Offence of Zina \Enforcement of Hudood) Ordinance, 1979 (Ordinance No, VII of 1979) and the petitioner is equally and vicariously guilty for the commission of the offence.
7. I have given my deep thoughts to the submissions made by the parties as well as by the learned Additional. Advocate. General I will refrain to go deep into the appreciation of the evidence and data available on the record, because it may prejudice the case of either pasty suffice is to note that the offence with which the petitioner and his co-accused are charged is not only heinous but is unethical and un-Islamic to subject a child of 12 years to sexual intercourse by grown-up persons. The offence with which the petitioner is charged carries a sentence of life imprisonment and come within the prohibitory clause, of section 497 Cr.P.C.
8. In view of the facts and circumstances of the case narrated above, no case for bail has been made out this bail petition is dismissed. The complete challan is ready and the learned trial Court namely Shafiq Ahmad Tanoli, Additional Sessions Judge-IV, Mardan has sent a letter of request for the return of the record of this case before 4-2-2008 because the trial is being delayed as the record of the case has been annexed with Criminal Miscellaneous Application No, 1256 of 2007. So the record of the case be transmitted to the trial Court forthwith and the trial Court is directed to dispose of the case as expeditiously as possible.