RAJA SAEED AKRAM KHAN, J.---The titled appeal by leave of the Court has been filed against the order of the High Court dated 24.09.2016, whereby, while accepting the revision petition filed by the accused, he has been released on bail. This Court vide short order dated 04.07.2017, recalled the concession of bail granted to the accused by the High Court and now through the instant judgment, the detailed reasons for recalling the same are being recorded.
2. The brief facts forming the background of this appeal as depicted from the record are that the appellant, herein, lodged a report at Police Chowki Pagyal, Tehsil Samahni, District Bhimber, on 12.07.2016, alleging therein, that he is resident of Chowki Pagyal. He is a shopkeeper by profession. At about 9:30, a.m., his son, namely Umair Ali, whose age is 10 years went to the shop of Abid Shah for buying milk. Abid Shah, accused committed sodomy with the minor in the shop. This fact was disclosed by his son when he reached back at home. On this report, a case in the offence under section 377, A.P.C., was registered against the accused. He was apprehended by the Police. He moved an application for grant of bail after arrest before the Magistrate 1st Class which was rejected vide order dated 04.08.2016. The second bail application moved by the accused before the learned Sessions Judge Bhimber met the same fate. However, the revision petition filed by the accused before the High Court succeeded and he was released from the Custody subject to furnishing of a bail bond in the sum of Rs.200,000/- (two lac) and personal bond in the like amount.
The complainant approached this Court challenging the legality and correctness of the impugned order through the instant appeal by leave of the Cowl.
3. Sh. Masood Iqbal, Advocate, the learned counsel for the complainant, argued that the order passed by the learned High Court is against law and the facts of the case. He submitted that the learned High Court while enlarging the accused on bail has not exercised the vested discretion in a judicious manner as the accused has committed a heinous offence of sodomy with 10 years old boy. He added that the learned High Court has not taken into account that the material collected by the prosecution during the investigation fully connects the accused with the commission of the offence. He further added that the accused is duly nominated in the promptly lodged FIR with a specific role of committing sodomy and this fact is corroborated by the medico-legal report, therefore, the question of false implication of the accused with the commission of offence does not arise. He argued that the statements of witnesses recorded under section 161, Cr.P.C., are supportive to the contents of FIR and in presence of such overwhelming evidence, there was no occasion to accept the revision petition filed by the accused. The deep scrutiny of record has been made by the learned High Court which is not warranted under law while deciding the bail matter. He added that the !earned High Court has considered the delay in obtaining the report from the chemical examiner and the affidavit of some persons of the locality that no occurrence has taken place as sufficient grounds for grant of bail while treating the case as one of further inquiry, which is against the facts and the principle of natural justice. A boy of 10 years of age has been made subject to sodomy inside of a shop. His solitary statement supported by the medical evidence fully connects the accused with the commission of such a heinous offence but these important legal aspects of the case escaped the notice of the Court below while passing the impugned order.
4. On the other hand, Raja Khalid Mehmood Khan, Advocate, while appearing on behalf of the accused, strongly controverted the arguments advanced by the learned counsel for the complainant. He submitted that the impugned order has been passed while keeping in view all the legal and factual aspects of the case, hence, does not warrant any interference by this Court. He added that as the matter requires further probe which makes the case one of further inquiry, therefore, the learned High Court has rightly extended the concession of bail to the accused. He further added that once bail has been granted by a Court of competent jurisdiction, the same cannot be recalled without overwhelming evidence as the principles for grant of bail and cancellation of the same, are quite different. He contended that chalan has already been presented in the Court of competent jurisdiction and the accused is no more required for further investigation, therefore, keeping him behind the bars for an indefinite period will serve no useful purpose. He further contended that the accused has enroped in a false case just because of enmity and personal grudge. He lastly argued that there is no allegation of misuse of the concession of bail against the accused, moreover, the witnesses who got recorded their statements under section 161, Cr.P.C., are close relatives of the complainant, hence, their testimony cannot he relied upon safely.
5. Mr. Muhammad Zubair Raja, Additional Advocate-General, adopted the arguments advanced by the learned counsel for the complainant while submitting that the accused is fully connected with the commission of the offence and the person who. is involved in such like heinous offence is not entitled to any discretionary relief.
5(sic.) We have heard the arguments of the learned counsel for the parties and gone through the record made available along with the impugned judgment/order. The accused was booked in a case bearing FIR No.73/2016. The allegation levelled against him is that he committed sodomy with the son of the complainant who is a 10 years old boy. During the course of investigation, statements of various witnesses were recorded under section 161, Cr.P.C. The victim was also medically examined. The medico-legal officer opined that:- "Umair Ali son of Zulfiqar Ali Age-9 years. Sex Male.
A boy Age about 9 years. No Brux marks on other parts of body. But there are lacerations brux are around anus.
Samples/Swab Rectal are taken. Send for Chemical examiner report Govt. Punjab Lahore.
Opinion-Clinically may be act of sodomy is done but final opinion will be given after chemical examination report"
(Underlining is ours)
After going through the above reproduced opinion made in the medico-legal report, it appears that the same supports the version of the complainant. It is settled principle of law that at the bail stage only a bird eye view can be made on the material brought on the record in the form of FIR, medico-legal report and contents of the statements of witnesses recorded under section 161, Cr.P.C. After examining the allegation levelled in the FIR coupled with the medico-legal report and the statement of witnesses recorded under section 161, Cr.P.C., it seems that the accused is involved in the heinous offence of moral turpitude and the case of the accused securely falls within the prohibitory clause of section 497, Cr.P.C. The findings of the learned trial Court as well as the Sessions Judge Bhimber have been interfered with by the learned High Court merely on the ground that the report of the chemical examiner has not been received despite of lapse of 2 months which makes the case one of further inquiry. We are afraid that at this stage of the case the fact of non- receiving of the report of the chemical examiner cannot be made ground for releasing the accused on bail who is involved in a heinous offence of sodomy which is otherwise supported by the medico-legal report and statements of witnesses recorded under section 161, Cr.P.C., which is a relevant material to be tentatively examined at the bail stage.
6. It may be observed here that the affidavit filed by some people of the locality in favour of the accused cannot be treated as evidence to grant concession of bail. Moreover, the affidavits produced by the accused in support of the bail application have neither been sworn in or presented by the deponents themselves nor attested by the Oath Commissioner, hence, cannot be termed as evidence on the basis of which the accused could be released on bail. Reliance may be placed on a case reported as State v. Muhammad Nasir Khan and 2 others [1985 PCr.LJ1546], wherein, it has been held by this Court as under:- "10. With regard to the affidavits, these could not be made basis for the conclusions that were arrived by the Shariat Court for the reasons that 3 of these affidavits attested on different dates were filed on behalf of Shah Behram. One relating to Muhammad Nasir respondent was attested on 23-7-1983 while other 2 were attested in September, 1983. One related to Saleem and the other to Muhammad Naqi and Muhammad Shafait respondents. Three others on behalf of Muhammad Riaz relating to Nasir, Saleem and Murtaza attested on 18-7-1983, 8-9-1983 and 10-9-1983, respectively were filed by the respondents. While another attested on 10-9-1983 was filed on behalf of the P.W. Rashid Hasrat, according to which the deponent except the absconding accused neither knew other accused nor could he recognise because of confusion that prevailed during the occurrence. All these documents were neither sworn nor presented before the District Criminal court by the deponents themselves. They are not found to have appeared before the Court to support these documents at any stage of the proceedings. These have been attested by the Oath Commissioner but without any verification of the identity of the deponents. The contents of these documents could not in our estimation, therefore, even be treated as evidence within the terms of Evidence Act The impugned order having been based on invalid reasons relating to the point was, in our estimation, violative to the rules governing bail matters.
7. The accused is duly nominated in a promptly lodged FIR with specific allegation and no enmity comes on the record to falsely implicate him in the commission of the offence. Mere on the ground that the investigation has been completed and the accused is no more required for further investigation, bail cannot be granted in a case in which the accused is fully connected with the commission of offence on the basis of tentative assessment of the material collected by the prosecution. Deeper appreciation of the evidence is not warranted under law at bail stage as the same is the job of the trial Court. The reasons assigned by the learned High Court for granting bail to the accused are not plausible in nature rather the same are capricious and arbitrary, hence, cannot be approved. Normally, this Court does not interfere with the discretion exercised by the Court of competent jurisdiction while dealing the bail Tatters, however, in case if it appears to be perverse and against the record, the same can be interfered with.
On the basis of above stated reasons, this appeal is accepted and the impugned order of the High Court dated 24.09.2016 is hereby set aside.