CH. KHALID YOUSAF , J.---The captioned revision petition has been filed against the impugned order passed by the Additional District Court of Criminal Jurisdiction, Kotli dated 17.10.2019, whereb y the post-arrest bail application of the accused-petitioner was rejected.
The facts briefly stated are that on complaint of Muhammad Basharat, complainant a case under sections 377, 322/34, A.P.C. was registered against the accused-petitioner at Police Station Khuiratta alleging therein that complainant's daughter Mst. Nazish 15/16 years old is student of 10th class in Jinnah Scientific School Gala Bazar Khuiratta. It is further stated that one Kash if alias Kashi picks and drops her along with other complainant's children on a Suzuki and he pays Rs.800/- for each child. It is further stated that on 04.05.2019 at 03:00 p.m. complainant received a packed memory card from his neighbor Rujhan, who told him that Muneeb (a student of Jinnah Scientific School) sent it for you, as Mst. Nazish came to know that, she drunk bath sweep, she was brought in the hospital where she died. It is further alleged that complainant has no information about the material containing in the card therefore, post-mortem was not taken place. It is further alleged that complainant now got checked the memory card and came to know that accused-petitioner sent the card towards complainant for blackmailing to his daughter through obsceneness due to which Mst. Nazish immediately drunk bath sweep and suicide. It is further alleged that accused Muhammad Muneeb with abetment of accused Akash alias Kashi sent the card towards complainant for blackmailing his daughter .
After registration of the case, the Police started investigation and arrested the accused petitioner . The accused- petitioner applied for post arrest bail before District Court of Criminal Jurisdiction Kotli whereby the same was rejected on 13.05.2019, thereafter the accused-petitioner moved post-arrest bail application before the same court on 02.09.2019 which was also met the same fate on 07.09.2019. The accused-petitioner moved another post- arrest bail application before the same court on 05.10.2019 which was entrusted to Additional District Court of Criminal Jurisdiction Kotli which was also met the same fate on 17.10.2019, hence this revision petition.
Mirza Abdul Aziz Ratalvi, Advocate, learne d counsel for the accused-petitioner vigorously argued that the trial Court committed grave error while refusing the bail. He contended that Mst. Nazish drunk bath sweep and committed suicide due to fear of her father . He further submitted that when the complainant checked the memory card after 4 days of her death, the post-mortem was not conducted deliberately and when the body was decayed the post mortem was conducted after lapse of long time which creates doubt in the prosecution story . Learned counsel averred that accused-petitioner is of 16 years old, student and he has been behind the bars for more than 5 months and since that the prosecution produced a single witness before trial court. Learned counsel stressed that in fact the complainant beat her daughter and hit on her head with stick due to which she died. The learned counsel contended that his client was roped in the false case. Learned counsel emphasized that section 377/APC is not attracted at all in the case in hand. The learned Counsel stressed on the point that trial Court failed to apply its judicial mind and failed to appreciate that case of the applicant requires further inquiry , therefore, by accepting the revision petition the petitioner may be released on bail. He placed his reliance on a case reported as "Sajjad Haider v . The State [1994 MLD 1 120 Lahore].
On the other hand, Sh. Noman Akhter , Advocate learned counsel appearing on behalf of the complainant- respondent contended that the accused-petitioner assailed the validity of impugned order dated 17.10.2019 passed by the Additional District Court of Criminal Jurisdiction Kotli but has not bother to challenge the other orders passed by the District Court of Criminal Jurisdiction Kotli. Learned counsel stressed that the learned counsel for accused- petitioner failed to point out any fresh ground. Learned counsel averred that according to medical report the accused-petitioner is 21/22 years old young man..1-He stressed that accused-petitioner committed heinous crime and according to the offences under sections 322/34 377, A.P.C. the case against the accused petitioner comes in the ambit of Prohibitory Clause of section 497, Cr.P.C. Learned counsel stressed that section 377/APC is fully attracted in the case in hand as the accused-petitioner put his male organ into victim/deceased's mouth which was initiative act of sexual intercourse. Therefore, learned subordinate Court rightly refused the bail. The learned counsel defended for complainant the impugned order on all counts and prayed for dismissal of the captioned revision petition. Learned counsel placed his reliance on the following case law;-
1. 1996 SCR 29
2. 2005 SCR 72
3. 2007 PCr .LJ 78
4. 2011 SCMR 1227
5. 2013 YLR 1837
6. 2018 PCr .LJ 270 Ejaz Ahmed Bhatti, learned AAG appearing on behalf of the State fully owned the arguments advanced by the learned counsel for the complainant-respondent and contended that due to fear and obsceneness Mst. Nazish committed suicide therefore, the accused-petitioner is not entitled for any concession of bail and subordinate court has rightly rejected the bail application.
I have heard the learned counsel for the parties as well as learned AAG and gone through the record of the case with utmost Care.
It is, now, well settled principle of law governing the bail matters that at bail stage a bird eye view of the record has to be taken into consideration and deeper appreciation of the evidence is neither permissible nor desirable at bail stage. No doubt, at the same time the Courts are not expected to pass a bail order in vacuum.
In the case in hand, the allegation against the accused-petitioner is that he made obscene video clip of Mst. Nazish and sent the memory card to her father for blackmailing his daughter thereupon due to fear of humiliation she drunk bath sweep and later on died and case under sections 322, 377/34 was registered against accused - petitioner and co-accused.
So far as the contention of the learned counsel for the accused petitioner that section 377/APC is not attracted in this case. In this regard I have perused the record which reveals that the investigating agency extracted the pictures from memory card which are also placed on record with the challan. After perusal of the same I am of the opinion that sufficient material is available on record from which the section 377/APC is prima facie attracted irrespective of the fact that whether sodomy was committed or not, such attempt committed by the accused- petitioner is sufficient to bring the case within the purview of section 377/APC which is punishable with imprisonment for 25 years, therefore, the case against the accused petitioner falls in the ambit of prohibitory clause of section 497, Cr .P.C.
After tentative assessment of the FIR statement of witnesses recorded under section 161, Cr.P.C., medical report, post-mortem report and other incriminating material collected by the investigating agency . Keeping in view the extraordinary behaviour and conduct shown by the accused-petitioner i.e. recording of obscene video clip of teenage girl and sent it to her father for blackmailing his daughter , I am of the opinion that the accused-petitioner is prima facie connected with the alleged offences, therefore, he is not entitled for concession of bail trial Court did not commit any error while refusing bail to him which does not call for any interference by this Court.
The case law referred by the learned counsel for the accused-petitioner is not applicable due to distinguishable facts and circumstances.
In the light of what has been discussed above, finding no force in this revision petition, same is hereby dismissed.