' By my order dated 10-4-1984 I had directed the release of Nasir Mahmood son of Abdul Hameed on bail in the sum of Rs, 5,000 with one surety and p.r. In the like amount which he had furnished to the satisfaction of the Registrar of this Court. The learned Advocate-General being dissatisfied with my order had approached the Supreme Court for leave to appeal, and there had advanced the arguments that the alleged photographs of accused Nasir Mahmood with the victim and the confession of the accused were sufficient to disallow the application for bail but the Hon'ble Judges of the Supreme Court did not express themselves about the contentions because the contentions raised in the Supreme Court were not pressed before me, the matter has therefore, been remitted for decision afresh according to law and thus I have again considered the arguments of the learned Advocate-General and the counsel for the accused Nasir Mahmood.
2. Nasir Mahmood is accused of offences under section 377, P.P.C. Read with section 12 of the Hudood Ordinance, 1979 alongwith three others, two of them namely Kibria and Shakeel were arrested by the Police but enlarged on bail by the learned Additional Sessions Judge-II, Quetta and he refused to release the petitioner Nasir Mahmood though the allegations against all the accused were the same that they had committed sodomy against the will of the victim and forcibly one by one. The fourth person namely one Akhtar an orderly of an army officer in whose house the alleged offence was committed is left to be tried under the army rules and was not even arrested.
3. The learned Advocate-General has repeated before me the arguments he had advanced before the Supreme Court and has shown the photographs on which he has relied. In one of them the alleged victim is all alone and is naked while in the other two the accused Nasir Mahmood is shown busy in the commisison of the indecent Act. In one of the photographs the victim appears to be enjoying the act though the allegations in the F.I.R. Is that he was forced against his will. Both poses are distinct with each other and definitely pertain to two different occasions. The prosecution case is that Nasir Mahmood had indulged in the commission of the offence only once and that too when the other accused had done the act prior to him. The alleged confession of Nasir Mahmood recorded on 21-4-1984 has also been pressed and it has been vehemently argued by the learned Advocate-General that these pieces of evidence are prima facie sufficient to make out a case against him.
4. The learned counsel for the accused has repudiated the allegations and has urged that the allegations are concocted and leveled at the instigations of the employer of the alleged victim after a week of the alleged incident while the victim himself did not complain about any incident and had it been so the place of incident being in the vicinity of the Police Station Bijli Road the matter could have been reported then and there. It has been further submitted by the learned counsel that the accused was arrested on 15-3-1984, the alleged photographs through which the ignoble feat is demonstrated were also procured by the police the same day from persons other than the accused and not at his instance nor from a place in occupation of the accused but the alleged confession was obtained on 21-3-1984. It has been alleged that the Magistrate who is alleged to have recorded the confession is easily accessable to the police and has been obliging the police in the past.
5 The version of the prosecution and the contentions raised on behalf of the accused touch the merits of the case. I do not think it desirable at this stage to express myself on them nor it is appropriate at this stage to comment upon the merits or demerits of the case lest it may prejudice the case of the parties. The versions definitely require a thorough scrutiny but for the present bail application it is relevant to consider that the boy/victim himself did not give any explanation for the delay in recording the F.I.R. And it is significant that he was accompanied by his master, Lala lshaq who was annoyed when he learned about the incident not from the victim but from others. Thus, the medical evidence which could throw light on the matter has been destroyed and no soil cloth piece was made available. The pathology report does not help the prosecution. No eye-witness is available and the entire case of the prosecution rests on the statement of Mustafa the alleged victim. How for he is worthy of credit is to be judged at the trial. It has yet to be established if the alleged photographs pertain to the day of occurrence and are genuine and not cameratrics. The allegation of the prosecution is that the accused alongwith three others had committed the offence once while the photographs show the victim in two poses. The other accused equally charged with the commission of the offence have been released on bail. Mere heinousness of the offence is not sufficient to take away the discretion of the Court to grant bail which is never refused as punishment and there is no legal or moral compulsion to keep a person in jail. Ultimate conviction can repair the wrong caused by mistaken relief of bail but no satisfactory reparation can be offered to the accused for his unjustific incarceration if he is acquitted ultimately.
4 The learned Advocate-General does not even complain that the accused/petitioner has abused the concession of to him during these four months. I am informed that the Challan has been submitted in Court and the charges has been framed on 26-7-1984 to which the accused did not plead guilty. The prosecution witnesses were even summoned but could not be examined as the file was requisitioned by the Advocate-General for preparing the matter in this Court.
' I am, therefore, not inclined for the reason shown above to commit the accused to custody. The request of the learned Advocate-General in this behalf is, therefore, turned down and the order, dated 10-4-1984 whereby the bail was granted to the accused Nasir Mahmood is maintained.