Raja Saeed Akram Khan, J.-- By our short order announced on 23.01.2017, this appeal was disposed of in the following manner:-- "Arguments heard. The details shall follow. While accepting this appeal and recalling the impugned order of the Shariat Court the appellant is enlarged on bail subject to the condition of furnishing personal bond of Rs.5,00,000/- and two sureties of same amount to the satisfaction of any judicial Magistrate, Kotli. On furnishing of personal bond and sureties the appellant, Shah Zaman, shall be immediately released from offences registered in FIR No. 215/2013 under sections 34, 377, 506 APC and 12, ZHA, if not required in any other case.
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In support of the above short order dated 23.01.2017, the detailed reasons are as under:--
2. The supra appeal has been filed against the judgment of the Shariat Court dated 29th September, 2016, whereby, the revision petition filed by respondent No.1, herein, has been accepted.
2. Brief facts of the case as stated are that Ashiq Hussain, the complainant, lodged a report at Police Station Kotli on 18.07.2013, alleging therein, that the accused-appellant, herein, had been serving in the house of Rashid Matloob, his nephew, since last three months. The father of Rashid Matloob has been died. On 01.07.2013 at about 11:15p.m., Shah Zaman called Rashid Matloob to come out of the house and give him a bottle of water. When Rashid Matloob came out, Shah Zaman, accused along with other two co-accused took Rashid Matloob faraway on the gun point and committed sodomy with him. On this report, a case in the offences under sections 506, 377 and 34, APC read with section 12 of the Offence of Zina (Enforcement of Hudood) Act, 1985, was registered against the accused. The co-accused were proceeded under section 512, Cr.P.C. After formal investigation, a challan against the accused was presented before the Court of competent jurisdiction. The accused, Shah Zaman filed an application for grant of bail after arrest in the District Court of Criminal Jurisdiction, Kotli. The learned trial Court, after necessary proceedings, while accepting the bail application released the accused on bail vide order dated 09.01.2014. The order of the trial Court was assailed before the Shariat Court by way of a revision petition. The learned Shariat Court recalled the bail granting order passed by the District Criminal Court, Kotli, vide impugned order dated 29.09.2016, hence, this appeal.
3. Raja Muhammad Shafique, Advocate, the learned counsel for the accused, argued that the learned Shariat Court failed to adhere to the principle of law laid down by the superior Courts that once the bail has been granted by a Court of competent jurisdiction, there must be strong, cogent, extraordinary and overwhelming grounds to cancel the same. He added that there is no allegation of miss-use of concession of bail. The trial is in progress and the accused is no more required for further investigation. He further added that the only evidence i.e. video recording upon which the case of the prosecution is based, has not been recovered as yet. He contended that the medical report does not support the version of the prosecution as Medico Legal Office has declared in his report that no sign of sexual assault or abrasion has been found and opined that sodomy was not committed which makes the case of the accused one of further inquiry. He strongly argued that the appellant is behind the bars since 29.09.2016 but no concrete evidence has come on the record against him. He lastly argued that F.I.R. was lodged after a considerable delay of 18 days which itself makes the case doubtful as no explanation of delay has come on the record. The delay is always fatal for the prosecution but this aspect of the case escaped the notice of the Shariat Court while passing the order for cancellation of bail without assigning strong and cogent reasons.
4. On the other hand, Mr. Muhammad Zubair Raja, Additional Advocate-General, while supporting the judgment of the Shariat Court submitted that the appellant is involved in a heinous offence which affects the whole society as it is a case of moral turpitude. He added that due to medical examination of the victim after 18 days, the report was not found positive. He further added that when the learned counsel for the accused before the Shariat Court was asked to produce the video recording of the occurrence, he conceded that the same is available with the co-accused which clearly shows that the offence was committed. He lastly argued that the trial is in progress and likely to be completed in the near future, therefore, bail cannot be granted at this stage.
5. We have heard the learned counsel for the parties at some length and perused the record made available along with the impugned order. The allegation levelled against the accused is that he committed sodomy with Rashid Matloob. It is spelt out from the record that the matter was reported to the police regarding the occurrence after a delay of 17 days and no explanation has been offered in this regard. Such like delay is always fatal for the prosecution. No concrete evidence has been brought on record by the prosecution. The negative medical report coupled with the statement of Medico Legal Officer who categorically stated that there is no sign of sexual assault or abrasion and in his opinion no sodomy was committed, makes the case one of further inquiry. The recalling of bail granting order passed by the District Criminal Court on the ground that the accused himself admitted that the video recording of the occurrence is available with the co-accused whose authenticity is yet to be determined, cannot be termed as extraordinary circumstances which are prerequisite for cancellation of bail granted by the Court of competent jurisdiction and the same can only be interfered with if the discretion exercised by the Court appears to be perverse. Nothing has come on the record from which it could be ascertained that after getting the bail, the accused misused the same or extended any threats to the complainant. So far as the contention of the learned Additional Advocate-General that trial has been commenced and likely to be completed in near future, is concerned, it may be observed here that the commencement of trial does not debar to release the accused on bail when the case of further inquiry is made out. In this regard, reliance may made on a case reported as Syed Khalid Hussain Shah vs. The State and another [2014 SCMR 12], wherein it has been observed as under:- "7. Yes, one of the empties allegedly picked up from the venue of occurrence matched with the pistol alleged to have been recovered at the instance of the petitioner on the third day of the occurrence, but it cannot be over emphasized when the case, in view of the questions formulated above, calls for further inquiry. Commencement of trial, too, cannot come in the way of grant of bail, if in the opinion of the Court, a case for further inquiry is made out. Above all else when ultimate conviction, if any, repairs the wrong caused by mistaken relief of bail it would be rather harsh and even unjust to decline bail to the petitioner in a case entailing a sentence which may extend to 10 years."
Thus, the argument of the learned Additional Advocate-General, in this regard, being without substance needs no consideration.
6. It is settled principle of law that the circumstances prerequisite for grant of bail are absolutely different from that for cancellation of the same. Once the accused has been released on bail, his liberty cannot be interfered with lightly. For cancellation of bail it has to be seen; whether, bail granting order was patently illegal, erroneous factually incorrect and has resulted into miscarriage of justice. We fail to gather any such circumstances in the case in hand and in absence of that there was no occasion for the Shariat Court to recall the concession of bail concession which was extended by the Court of competent jurisdiction. Bail cannot be withheld as punishment as it amounts to conviction without trial which is not permissible under law. The order of the learned Shariat Court for recalling the concession of bail granted to the accused appears to be departure from the settled principle of justice.
Resultantly, this appeal is accepted. The impugned order passed by the learned Shariat Court on 29.09.2016 is set aside. Consequently, the bail granting order passed by the trial Court dated 09.04.2014 stands restored.