Through this petition, the petitioner seeks cancellation of pre-arrest bail allowed to Respondent No, 2 in case FIR No, 677/2009 dated 15.08.2009 under Section 377 PPC Police Station Mumtazabad, Multan, by the learned Additional Sessions Judge, Multan vide order dated 30.10.2009.
2. Brief facts, as unfolded in the FIR by the complainant, are that his son, who is studying in a religious Madrisa for the last one year situated in Majhipur Dunyapur Road. Multan, used to go to Madrisa in the morning from 6:00 a.m. to 2:00 p.m; on the day of occurrence he did not return home till 4:00 p.m. he (complainant) alongwith his real brother and maternal uncle went to search him and when they reached the Madrisa they found the child Shakeel Ahmad lying in injured condition on the Choubara of Madrisa, who told them that Hafiz Muhammad Khaliq had committed sodomy with him and ran away extending threats of dire consequences in case he reported the matter to anyone. Hence, this FIR.
3. After registration of the case accused Respondent No, 2 first applied for his pre-arrest bail before the learned Additional Sessions Judge, Multan, which was dismissed two times for non-prosecution and ultimately third time Respondent No, 2 succeeded in obtaining the pre-arrest bail from the Court of Additional Sessions Judge. Multan vide order dated 30.10.2009.
4. Learned counsel for the petitioner submits that the accused Respondent No, 2 is nominated in the FIR with specific role of committing sodomy with the victim, who was medically examined and chemical examiner's report was positive; swab was found stained with Seamen taken from the anal of the victim; learned trial Court totally brushing aside the ratio laid down in judgment titled as Murad Khan vs. Fazal-e-Subhan and another (PLD 1983 Supreme Court 82), allowed pre-arrest bail to the Accused/Respondent No, 2, the Accused/ Respondent No, 2 was found guilty in the investigation; learned trial Court has not expressed what was the mala fide of the complainant or the police to falsely implicate the Accused/Respondent No, 2; learned trial Court did not touch or give opinion in this regard in the bail granting order dated 30.10.2009. Learned counsel for the petitioner makes reliance on the judgments titled as. Murad Khan vs. Fazal-eSubhan and another (PLD 1983 Supreme Court 82), Muhammad Shafiq and another vs. The State (1982 SCM R 384), Zia- ul-Hassan vs. The State (PLJ 1984 SC 56), Ch. Waris Ali vs. The State (2007 SCMR 1606), Rana Muhammad Arshad vs. Muhammad Shafique and. another (PLD 2009 Supreme Court 427), Riaz Ahmad vs. The State (2009 SCM R 725), Sana Ullah vs. Muhammad Shafi and another (2007 P.Cr.LJ 368), Rasool Khan vs. The State (2008 M LD 989), Haji Ahmad vs. The State and another (2008 M LD 1030), Muhammad Asghar vs. The State (NLR 1999 Criminal 28); further submits that the offence being heinous was non-bailable; there was no previous enmity, ill-will or malafide on the part of the complainant or police to implicate the accused Respondent No, 2 falsely; that the offence falls within the prohibitory clause of Section 497 Cr.P.C; that the impugned order dated 30.10.2009 is illegal and void, therefore, the bail of the accused Respondent No, 2 may be recalled.
5. On the other hand, learned counsel for the Accused/Respondent No, 2 vehemently supports the bail granting order dated 30.10.2009 by contending that false case was registered against the Accused/Respondent No, 2 by the local police, at the instance of local political high-ups and it was just political victimization at the instance of the local political personnel's. Further contended that no marks of violence were found on the body of the victim in the opinion of the doctor as observed in the MLC; Accused/Respondent No, 2 is innocent and no such occurrence took place; Accused/Respondent No, 2 is a Qari and running a Madrisa; there is a dispute with the Qari of other Madrisa; the son of the complainant was student of that other Qari; the MLC does not support the contention of the complainant; the police have declared the version of the complainant as doubtful; Accused/Respondent No, 2 is a previous non-convict and nothing is to be recovered from him, therefore, the petition for cancellation of bail may be dismissed.
6. I have heard learned counsel for the parties and perused the impugned bail granting order dated 30.10.2009, passed by the learned Additional Sessions Judge, Multan.
7. It was promptly lodged FIR without any consultation or deliberation. The occurrence is stated to be happened on 15.08.2009 and the same day FIR was got lodged. Victim- was medically examined. Swabs were sent to chemical examiner and the report is positive. For grant of pre-arrest bail malafide on the part of the police or the complainant must be established in the bail granting order and these basic ingredients are missing. Learned trial Court wholly brushed aside the cardinal principle for grant of pre-arrest bail and committed illegality and irregularity while granting the pre-arrest bail to the accused Respondent No,
2. FIR was lodged on 15.08.2009 and the pre-arrest, bail was confirmed on 30.10.2009 just after 2-1/2 months, while twice ad-interim bail allowed was dismissed on his non-appearance. Learned trial Court did not take notice of misuse of bail by the petitioner. Deeper appreciation of evidence is not permissible while granting bail and the learned trial Court has given deeper appreciation of evidence discussing contradictions in the statements of complainant and the statement of victim boy which are even of minor nature, on such minor discrepancies ad-interim pre-arrest bail cannot be confirmed. The Accused/ Respondent No, 2 is nominated in the FIR with specific role. PWs have also implicated the petitioner.
Learned counsel for the Accused/ Respondent No, 2 stated that members of respectables of the locality sworn in affidavits regarding the innocence of the respondent. Affidavits after the occurrence are always manoeuvered. Accused/Respondent No, 2 twice disappeared from the Court after grant of ad-interim bail his bail petitions were dismissed twice for non-appearance before the Court, so, his conduct was even sufficient to dismiss his bail petition. The Accused/ Respondent No, 2 was not entitled for extraordinary discretionary relief.
8. In view of the above discussions and reasons, I allow this petition for cancellation of bail and pre- arrest bail granted to the Accused/Respondent No, 2 by the learned Additional Sessions Judge, Multan vide order dated 30.10.2009 is hereby withdrawn.
9. Notice be issued to the learned Additional Sessions Judge, Multan, who confirmed the pre-arrest bail of the Accused/Respondent No, 2, namely, Hafiz Abdul Khaliq son of Mushtaq Ahmad, to justify his bail granting order and to explain what material h.e had considered while confirming the pre- arrest bail in such like heinous offence when apparently sufficient material is available on the file to connect the accused with the commission of the offence.