1. 'SAJJAD ALI SHAH, J.---Through this Application the Applicant/ Complainant has called in question order dated 12-9-2009 passed by the V-Additional Sessions Judge, Karachi-East whereby his Application under section 497(5), Cr.P.C. For cancellation of bail was dismissed.
2. 'Briefly, the complainant lodged a report on 2-5-2009 asserting therein that on 30-4-2009 his son Adnan aged about five years went out of the house in the afternoon at about 2-00 p.m. And did not return. He searched for him everywhere but could not found him and today on 2-5-2009 he requested the Army Dog Centre for snuffer Dogs but just before their arrival his neighbour Abdul Hakeem and his son Zeshan son of Abdul Hakeem (accused) informed that their water tank is stinking, come and see if his son is not in the water tank. Salamat Shah who is maternal uncle of victim Adnan removed the lid of the water tank after removing a 20 kg stone and saw the dead body of Adnan floating on the water. The area police was informed that his son has been killed by some one and thrown in the water tank.
3. 'Mr. Molvi has contended that the Post Mortem of the victim was conducted on the same day and two anal swa bs were also taken. The respondent/accused from whose house body of the victim was recovered was taken into custody and when interrogated the accused on 28-5-2009 admitted to have committed sodomy with the victim and then after choking his throat threw him in the water tank. He further disclosed that while he was throwing the body of victim in the water tank he was seen by one of his friends namely Waseem Shah who suddenly came there. The accused threatened Waseem Shah that if he disclosed this incident to any one it will not be good for him.
4. 'The respondent/accused conesquently, applied for bail which was granted on 11-6-2009 on the ground that except the fact that the body of the victim was recovered from water tank of the accused no direct or indirect evidence is available and since Medico Legal Report and Chemical Report have not been received, therefore, the respondent/ accused was admitted on bail with the observation that Prosecution is at liberty to move for cancellation upon receiving Chemical Report and cause of death.
5. 'Per learned counsel blood samples as well as semen of the accused was obtained by the Investigating Officer as evident from repbrt of Medico Legal Centre, Civil Hospital, Karachi on 29-5- 2009 and was sent for Human DNA along with anal swabs of the victim to Dr. A.Q. Khan Research Laboratory who vide their report dated 10-7-2009 confirmed the matching of accused DNA profile with that available on swa b and consequently an application for cancellation was moved which was dismissed mainly on the ground that the DNA was not conducted through a proper channel or any other reliable source. It was next contended that the Court while granting bail further ignored 161 Cr.P.C. Statement of Waseem Shah, one of the eyewitnesses. Per learned counsel in cases where the bail is granted without considering the material on record the same is liable to be cancelled and in this case the statement of Waseem Shah was not considered and the DNA report was rejected on the ground that correspondence had taken place between the Investigating Officer and Dr. Abdul Qadeer Research Laboratory in another cases bearing F.I.R. No,61/2009 under section 377/302 read with section 366-A, P.P.C. In which accused was also required in similar charge. Per learned counsel there was sufficient material on record to connect the accused with commission of crime, therefore, neither the bail granting order was in accordance with law nor the rejection of cancellation of bail application can sustain.
6. 'The Assistant Prosecutor General has also not supported the impugned order and has asserted that it was a fit case for cancellation of bail as the body was recovered from the house of accused without an explanation and no ill will or mala fide in order to falsely implicate the accused was ever projected. On the other hand learned counsel for the accused has fully supported the impugned order and has contended that on 29-5-2009 the concerned Magistrate had not extended the remand and has directed judicial custody of the accused, therefore, it is a mystery how his blood and semen was obtained on 29-5-2008 at 1-40 p.m. It was next contended that the admission of the accused is of no consequence and therefore, was rightly not considered either at the time of enlarging the accused on bail or rejecting the cancellation of bail application. He, therefore, urged for dismissal of instant application.
7. 'I have heard learned counsel for the respective parties and perused the record.
8. Though the name of respondent/ accused does not appear in the F.I.R. As it has been lodged against unknown persons, but at the same time it cannot be ignored that the dead body of the victim who was five years old boy was recovered from the water tank of the accused's house. The police file further reveals that on 28-5-2009 the accused has revealed to the Investigating Officer that after committing sodomy he had choked the throat of the victim in his water tank and that such incident was witnessed by Waseem Shah though such confessional statement is of no consequence but the Investigating Officer on the same day recorded 161 Cr.P.C. Statement of said witness namely Waseem Shah wherein, he stated to have seen the accused throwing the victim in the water tank. It is also apparent on the record that on 29-5-2009 when further remand was declined the blood and semen sample of the accused were taken by the Investigating Officer before entrusting the custody to Jail and after taking necessary permission from his superiors such samples were sent to Dr. Abdul Qadeer Khan Laboratory with anal swab of the victim. It also appears that the Court while declining to consider the said DNA report fell into error by appreciating the effect of correspondence exchanged by the Investigating Officer with Dr. Abdul Qadeer Khan Research Laboratory in respect of another case ignoring the fact that the DNA report placed on record specifically mentions the crime number of the instant case, the name of the accused and anal swa b of the victim. Learned Counsel for the accused has further failed to point out any provision whereby Investigating Officer during remand period has to take permission of the trial Court for taking blood or semen samples or sending it to a Laboratory for matching the same with one found in the body of the victim. It is by now well settled principle of law that in case where the bail is granted ignoring material evidence on record the concession so granted could be recalled and in the instant case the Court below while granting bail or rejecting the cancellation of bail application totally ignored the fact that the body of the victim was recovered from the house of accused without any explanation, there was not even a remote likelihood of false implication, the DNA was in positive and there was an eye witness of the incident and lastly its observation in bail granting order to move for cancellation on the basis of material brought on record, therefore, the rejection of cancellation on the ground that the bail can be cancelled only on specified grounds was uncalled for.
9. 'In my opinion there was sufficient material available on record to connect the accused with the commission of the crime, therefore, the application is allowed. The to the respondent/accused is hereby cancelled. Let necessary information be forwarded to the concerned Police Station.