1. This application under section 497(5), Cr.P.C. For cancellation of bail has been filed by one Niaz Muhammad who is complainant in a case registered on 29th December, 1982, under section 12 Zina Hudood Ordinance, 1979, at Police Station Quaidabad, Karachi. He has prayed that bail granted to respondents Sajid Mahmood and Muhammad Yaqoob be cancelled.
2. Niaz Muhammad filed two separate Criminal Miscellaneous Applications being Nos.137 of 1984 and 254 of 1984. Both these applications arise from the same facts but separate orders for grant of bail have been passed by the learned IX and X Additional Sessions Judges, Karachi. I, therefore, dispose of both the Criminal Miscellaneous Applications by this single order as facts of these cases are same, and both the respondents are being tried in the above case.
3. Briefly stated the facts of the prosecution case are that complainant, Niaz Muhammad, is a Sub- Inspector of Police and used to go for his duty in the morning from his house. On 29th December, 1982, he returned to h's house in the evening where his wife informed him that today at about 3-00 p.m., their son Javed lqbal, aged about 5 years, came to the house weaping. On enquiry he told his mother a little while ago when he was passing in front of house of Ahmedji where Yaqoob and Sajid Mahmood alias Mooda called him inside the house. He further disclosed that Yaqoob remained standing outside the house while Sajid Mahmood alias Mooda removed his Shalwar and committed sodomy. The complainant, Niaz Muhammad, found his son Javed lqbal lying on Cot and was complaining of pain. He brought him at the police station and produced his blood- stained Shalwar and then lodged report, thereafter, took Javed lqbal to hospital for medical examination. The police after usual investigation challaned both these respondents under section 12 Zina Hudood Ordinance, 1979, The case is pending in the Court of IXth Additional Sessions Judge, Karachi.
4. Respondent Yaqoob has been granted bail by Xth Additional Sessions Judge, Karachi, vide order dated 18th January, 1983.
5. Mr. Gul Zaman Khan, Advocate appearing on behalf of the applicant, has argued that the order of grant of bail to respondent Sajid Mahmood is bad in law because once the application was decided on merits, the bail cannot be granted on the same ground by another Judge. He contended that the Additional Sessions Judge has erred in granting bail on the ground of age when this point was already discussed in previous order by Xth Additional Sessions Judge, Karachi.
He has produced birth certificate issued by Secretary, Mali Extension, Town Committee, where date of birth is shown as 30th December, 1965, therefore, Sajid Mahmood is over 16 years. On merits he has submitted that it is a case where accused Sajid Mahmood has committed sodomy on innocent boy of 5 years old. Medical evidence supports the version given by Javed lqbal. He has cited 1977 P Cr. L J 905, NLR 1981 U C 603, where it has been held that mere young age is not sufficient to consider grant of bail. In a case reported in 1975 P Cr. L J 1442 bail was cancelled and it has been held that bail once was rejected another order after 12 days is not sustainable. He has also argued that at the request of complainant, Sajid Mahmood was referred to Medical Board and according to Board's report Sajid Mahmood is 16/17 years old, therefore, the learned IXth Additional Sessions Judge, has wrongly held that Sajid Mahmood is below 16 years of age.
6. Regarding Yaqoob, Mr. Gul Zaman Khan Advocate contended his name appears in the F.I.R. And he has caught hold of boy and then stood at the door as a guard.
7. Mr. Nizamuddin Memon, learned Advocate appearing for both the respondents, has contended that nothing was secured from the place of incident. The clothes of Sajid Mahmood were secured on 7th January, 1983, whereas incident took place on 29th December, 1982. He has further argued that there is no eye-witness of the incident. Mr.Memon submitted that bail was granted on the basis of certificate issued by Secretary, Union Committee, Punj Garan, Tehsil Gujar Khan, District Rawalpindi, and School Leaving Certificate where date of birth is shown as 10th October, 1968, therefore, Sajid Mahmood is below 16 years age and Medical Board report is after 6/7 months of the incident. He has relied on 1970 SCM R 30 where it has been held that when accused is 16/17 years old it is a good case for grant of bail.
8. Mr. A. A. Muhammadally, A.A.G., Sind, appearing for the State, has supported the cancellation application so far applicant Sajid Mahmood is concerned. He has argued that there is no allegation against Muhammad Yaqoob of committing sodomy on the boy. Therefore, he does not support the cancellation of bail of Muhammad Yaqoob.
9. In this case, Javed lqbal, an innocent boy of 5 years old, has fully implicated both the accused in his statement. Medical report corroborates the version given by Javed lqbal. According to Medical Certificate sodomy has been committed on him. There are other witnesses in whose presence blood-stained clothes of the victim were secured. According to Medical Board's report the age of Sajid Mahmood, after X-ray and physical examination, have been determined as 16/17 years. Two certificates of Union Committee, Punj Garan, School Leaving Certificate and Union Committee, Malir, are in conflict on the point of date of birth of Sajid Mahmood. Not only this but one certificate shows that he was born at Rawalpindi district and in other certificate his birth place is shown at Malir, Karachi. In view of this position. I prefer Medical Board's report. The prima facie case under section 12 of Zina Hudood Ordinance, 1979, which is punishable with death, has been made out.
There is direct evidence against Sajid Mahmood. I refer to a case Kanwar lmamuddin v.
Muhammad Rafique and others reported in 1983 SCM R 791, where it has been held that attendant circumstances of the crime cannot be lost sight of while exercising discretion in allowing bail to accused below age of 16 years. The bail granted by High Court was cancelled. The order passed by IXth Additional Sessions Judge, Karachi, in granting bail in the circumstances when another Additional Sessions Judge, rejected the bail of applicant, Sajid Mahmood, few days ago, is contrary to judicial principle and cannot be maintained. The order is set aside. I accordingly accept the application (Crl. Miscellaneous No,137/1984) and cancel the bail of Sajid Mahmood. He is present (Crl. Miscellaneous No,137/1984), and is remanded to judicial custody to face the trial. So far Muhammad Yaqoob is concerned, there is no allegation of committing act of sodomy and the learned Xth Additional Sessions Judge, Karachi, who has granted bail, has exercised his discretion properly. Therefore, cancellation application (Crl. Miscellaneous No,254/1984) in respect of Muhammad Yaqoob is dismissed.
10. Before parting with his order, it is necessary for me to mention that bail applications in the same case are being disposed of by different Courts because learned Sessions Judges have been transferring bail applications filed before them to various Additional Sessions Judge with the result that conflicting orders are passed by different Judges in the same matters. I am of the view that bail applications filed under sections 498 and 498-A, Cr.P.C. Ought to be disposed of by the District and Sessions Judges only. I have also made such observation in my order in Crl. Miscellaneous Bail Application No,976/1983 and once again repeat that there is no specific provision in Cr.P.C. Which empowers the Sessions Judges, to transfer the bail applications to the Additional Sessions Judges.
The learned Sessions Judge can only act under section 17(4), Cr.P.C. When he is unavoidably absent and incapable of acting for the disposal of such urgent applications. Even otherwise, if the case is pending before the learned Additional Sessions Judge, my view is that even he cannot take cognizance of the absconders in so far not competent to dispose of such applications until and unless his supplementary challan is put in the proper way and cognizance is taken and then sent up to the Court of Sessions who may either deal with that case himself or transfer to a Court where it is pending. I have observed that in so many cases applications for bail before arrest filed under section 498-A, Cr.P.C. Are being disposed of by Additional Sessions Judge which is contrary to provisions of law. Copy of this order be sent to District and Sessions Judge, Karachi.