' Petitioner Muhammad ,Ejaz son of Muhammad Razzaq has filed this petition under section 497, Cr.P.C. Seeking post-arrest bail in case F.I.R. No,70 dated 12-3-2010 under sections 365-A/377, P.P.C.
Read with section 7 ATA registered at Police Station Rawat, Rawalpindi.
2. The allegation, in brief against the present petitioner is that he along with his co-accused namely Javed etc., had abducted Bilal Mazhar aged 13 years for ransom who was the son of complainant's maternal nephew.
3. Learned counsel for the petitioner contended that the abductee was not recovered from the possession of the petitioner. It is further contended that abductee had not nominated the petitioner as an accused. According to learned counsel, the petitioner is a driver and the co-accused had hired his vehicle. It is also contended that the petitioner has no concern with the alleged offence. It is further contended that nothing incriminating material was recovered from the petitioner.
4. On the other hand, learned counsel for the complainant assisted by learned DPG has opposed this petition by contending that the petitioner had admitted that he was a driver of the said Toyota Hiace and the same was hired by the co-accused. It is mentioned in the F.I.R. That two witnesses namely Muhammad Rafique and Javaid Akhtar tried to stop the said vehicle in which the abductee was going to be abducted and it was the petitioner who drove away the said vehicle. It is further contended that after abduction of the boy the accused persons had committed sodomy with him.
It is also contended that abductee was a boy of 13 years and student of sixth class and he was abducted on the way when he was going to school. Lastly, it is contended that after this occurrence the abductee died.
5. Heard. Record perused.
6. Abductee Bilal Mazhar, a boy of 13 years was abducted by the petitioner along with co-accused Javed etc., for ransom. It is specifically mentioned in the F.I.R. That it was Ejaz petitioner who was driving the said Toyota Hiace wagon in which abductee was abducted. It is also mentioned that Muhammad Rafique and Javaid Akhtar P.Ws. Tried to stop the said vehicle but in the meanwhile, the petitioner drove away the said Toyota Hiace. The statement of said P.Ws was recorded on the same day. Even they supported the version mentioned in the F.I.R. The petitioner in his bail application had admitted that he was driver of the said vehicle, but according to him said vehicle was hired by his co-accused. The perusal of the F.I.R. And statements of the witnesses who have no motive to falsely implicate him disclose that the petitioner was not a simple driver rather he was having knowledge of abduction at that time when the minor boy was abducted and the witnesses were stopping the vehicle. The conduct of the petitioner by itself is indicative that he was having the knowledge of the abduction of minor boy and was sharing A the common intention with his co- accused. Even his conduct after the occurrence is also relevant that he did not surrender himself immediately to the police and was arrested after nine days.
7. Bilal Mazhar, abdcutee was medically examined. According to the Medico-legal report there was redness around orifice. Swabs and pent of the victim were sent to the Chemical Examiner which were found to be stained with semen. Police recorded the statement of victim boy under section 161, Cr.P.C. He specifically nominated the petitioner as driver of the said wagon in which he was abducted. Even according to his statement, it was the petitioner who drove away the vehicle in which he was abducted forcibly by the co-accused Javed and other persons.
8. From the above mentioned facts, there is sufficient material against the petitioner to connect him with the crime. Such type of crimes are increasing day by day and the same should be curbed with iron hands. In view of the above circumstances, we are not inclined to grant bail to the petitioner. Consequently, this bail petition is dismissed.
9. Before parting with the order, we would like to observe that on 16-3-2010, the application for recording statement of abductee Bilal Mazhar was received by Syed Nazarat Ali, Special Judicial Magistrate, Rawalpindi. On the said date, said Judicial Magistrate did not record the statement of Bilal Mazhar abductee on the ground that Court time was over. Thereafter on two dates said Judicial Officer was not available.
' It is also important to note that on 16-3-2010, the victim was available with the said Judicial Officer for making statement and the complainant was also present there. On 19-3-2010, the Special Judicial Magistrate put certain questions to the abductee to which he categorically stated that he was appearing in the Court of Judge/Magistrate and studying in Class-VI in English Grammar School Jhatta Public School, Rawat and his age was about 13 years.
' It is mentioned in the proceeding recorded by the Judicial Magistrate that thereafter, abductee was made to sit in a separate room for pondering. After one hour Bilal Mazhar abductee was called by said Judicial Magistrate again who told him that he had already made statement recorded before the Police, whereupon, the learned Magistrate adopted a novel procedure and he read out and explained the statement under section 161, Cr.P.C. To Bilal Mazhar who admitted the same to be correct. Thereafter, upon asking, abductee told the Magistrate that he did not want to add more in his statement. And according to the Magistrate the said abdcutee had verified his previous statement. Thereafter learned Magistrate gave his verdict that in that situation, there was no need to further record the statement of the abductee and he dismissed the application for recording the statement of the abductee.
' The basic purpose of recording statements of the witnesses/abductees is to preserve evidence if at any subsequent stage, the said witness was not available. It is observed that the Judicial Magistrates are duty bound to record statement under section 164 Cr.P.C., or to conduct the identification parade but they normally avoid to do so for the reason that subsequently they have to appear in the Court of law in order to give evidence and by avoiding to record the statements of the witnesses some times they destroy the whole prosecution case.
' In the present case, the said victim was produced before the Judicial Magistrate, mentioned above. It is apparent from the proceedings that the learned Judicial Magistrate was not at all inclined to record statement of said abductee. He did not bother to inquire about the availability of the accused persons. He did not summon the accused persons to cross-examine the witnesses and only read out statement under section 161, Cr.P.C. To the abductee and did not record his statement under section 164, Cr.P.C. In the presence of the accused persons. By doing so, actually, the Magistrate had destroyed the whole case due to his lethargic attitude, because subsequently the said abductee died. Another purpose for recording the statement of witnesses under section 164, Cr.P.C. Is that when the said witness was declared hostile during trial, then he could be confronted with his previous statement by the prosecution. The said confrontation cannot be done by the prosecution with his statement under section 161, Cr.P.C.
' We had sought explanation from the said Judicial Magistrate. According to him, the statement under section 161, Cr.P.C. Was read over to Bilal Mazhar who endorsed the same. According to him the witnesses had refused to make any further statement voluntarily but this fact is not borne out from the proceedings mentioned in the order sheet rather the Magistrate had given his own verdict that there was no need to record statement of the abductee and then rejected the application.
Surprisingly, said application was marked to him by the learned Sessions Judge. If the same was to be rejected, it could be rejected by said learned Sessions Judge by himself, but the same was marked to the Judicial Magistrate for the purpose of recording statement of the abductee. This conduct of the Judicial Magistrate is not legal. His explanation is not satisfactory. He is warned to be careful in future.
' We have also observed that above practice is being adopted by other Judicial Officers. They without recording statement of the witnesses under section 164, Cr.P.C. Only read over the statement under section 161, Cr.P.C. To the said witnesses and did not record the statement under section 164, Cr.P.C. In accordance with law. Likewise, in the case of robbery and dacoities the identification parades are not held due to the reasons that subsequently the Judicial Magistrates have to attend the Court during trial for making statement. And in this way, they are spoiling many cases and therefore, this practice is highly deprecated. It is the duty of every Judicial Officer to act strictly in accordance with law and they should not adopt short cuts.
' Copies of this order shall be sent to all learned Sessions Judges in the province which learned Sessions Judges shall then circulate copies thereof to all learned Civil Judges/Judicial Magistrates within their respective jurisdiction.