' The brief facts, which are relevant for the disposal of this bail cancellation petition, as disclosed in F.I.R. No,145, dated 29-4-1994, lodged at 22-20 p.m. In Police Station Mirpur under section 377, P.P.C.
Read with section 12 of the Offence of Zina (Enforcement of Hudood) Ordinance, 1979, are to the following effect:-
(1) That the complainant, who belongs to Lahore, is admittedly a Professor and is presently teaching in Pakistan International Public School and College, Abbottabad whereas he is residing at Bungalow No,267, Street No,4, Jinnah Abad Colony, Abbottabad;
(ii) That on 20-4-1994 at about 7-15 p.m. His son, Master Hassan Mujahid, aged about 11/12 years, went to the nearby Jinnah Abad Market to fetch cold drinks and the complainant went to his College to attend to his duty;
(iii) that it was in the college that the Professor/complainant was informed by his wife that his son had not returned to his house and as such he rushed to his house and reached there at 8-30 p.m.
His minor son, Hassan Mujahid had, however, reached the house by then (five minutes earlier than him);
(iv) that the complainant inquired from his son as to where he had gone. The boy informed him that he had gone to Jinnah Abad Market to fetch cold drinks, that on his way back a Suzuki stopped near him and the driver of the Suzuki, who had a small beard, asked him to accompany him and to show him the way of Mandian, that he therefore, boarded the Suzuki and sat with the driver in the front seat, that the driver took him to a far off place and there, under duress and coercion, made him hold his penis in the first instance, and thereafter made him get down from the Suzuki and then committed sodomy with him. That after committing the unnatural offence with him the Suzuki driver brought him back to the house and left him there. The whole episode/incident was narrated by the son to his father;
(v) that after about 8/9 days i,e,, on 29-4-1994, the complainant, alongwith his minor son, was standing in the street, where his house is situated, when at about 5 p.m. The said Suzuki bearing Registration No,ADB- 730, came there and stopped near them. Hassan Mujahid instantaneously pointed out to his father (complainant) that the Suzuki driver (accused) was the said person who had committed sodomy with him. The complainant, on hearing this, tried to catch the driver but the driver, on seeing Master Hassan Muhajid, ran away. However, at the spur of the moment, the complainant jumped at the Suzuki and clung to it and started shouting for help. The hue and cry raised by the complainant attracted the attention of two persons, riding on a motor bike who, in order to help the complainant started chasing the Suzuki, that at that time the Suzuki had already reached the Lady Garden, Abbottabad Cantt. That from he Lady Garden the Suzuki driver turned towards Chitta Pul (Malik Pura) Abbottabad and it was there that the Suzuki driver stopped his Suzuki and vanished into a nearby street. The two persons on the motor bike had also reached the Chitta Pul and saw the Suzuki driver decamping from there. That it was there that the persons, who had gathered there, disclosed the identity of the Suzuki driver to the complainant and informed him that his name was Sheraz son of Noor Zaman, who belonged to Bandi Chamiali but was residing, for the time being, at Chitta Pul, Abbottabad;
(vi) that immediately thereafter the complainant lodged a written report with the police against accused Sheraz son of Noor Zaman. That on the basis of the said written report F.I.R. No,145 was registered in Police Station Mirpur under section 377, P.P.C. Read with section 12 of the Offence of Zina (Enforcement of Hudood) Ordinance, 1979 on 29-4-1994 at 22-20 p.m.
2. Accused Sheraz son of Noor Zaman was arrested who then submitted bail petition before the Ilaqa Magistrate on 30-5-1994. The Ilaqa Magistrate rejected his bail petition vide his order, dated 14-6-1994.
3. Aggrieved by the said order the accused submitted bail application (No,128/4-A of 1994) in the Court of the Additional Sessions Judge, Abbottabad (Mr. Shah Jehan Khan). The bail petition was accepted on 28-4-1994 and the Additional Sessions Judge released the accused on bail on furnishing bail bonds in the sum of Rs,50,000 with two sureties each in the like amount to the satisfaction of Ilaqa Magistrate.
4. The petitioner/complainant, father of the minor boy, has assailed the legality and vires of the order of the learned Additional Sessions Judge, and has knocked at the door of this Court for the redress of his grievance. He has prayed that the to the accused-respondent be cancelled.
5. I have heard Malik Mahood Akhtar, Advocate, learned counsel for the petitioner, Sardar Ghulam Mustafa, Advocate for the State and Mr. Amir Hussain Abbasi, Advocate learned counsel for the respondent (accused) at length and have had the advantage of going through the entire record of the case carefully.
6. It may be stated at the very outset that perusal of the order of the Additional Sessions Judge would show that he was persuaded to grant bail to the respondent-accused on the following grounds:--
(i) That the F.I.R. Was lodged after an inordinate delay of 9 days for which no plausible explanation has been given by the complainant;
(ii) that the result of swa bs, obtained at the time of medical examination of victim and sent to Forensic Science Laboratory, Peshawar was still awaited;
(iii) that the medical report, available on the file, did not support the version of the prosecution as alleged in the F.I.R., and
(iv) that the prosecution had not conducted the identification parade of the respondent (accused).
7. The learned Additional Sessions Judge thus came to the conclusion that there were no reasonable grounds for believing that the respondent (accused) had committed the offence with which he has been charged, that there were sufficient grounds for further inquiry into his guilt and as such the case of the respondent (accused) was arguable for the purposes of bail. Accordingly the concession of bail was extended to the respondent (accused).
8. The learned counsel for the petitioner (complainant) submitted before me that the order of the Additional. Sessions Judge was not only arbitrary and capricious but was also perverse inasmuch as he had neglected/ignored to appreciate the whole episode in its true perspective. He stated that undoubtedly the occurrence had taken place on 20-4-1994 when the minor boy was criminally assaulted by respondent-accused but at that time the accused had decamped from the scene of occurrence and his identity was not known to any body. That it was impossible for the complainant, who had been informed by his minor son of 11/12 years of age about the occurrence, to have lodged a report on that day against an unknown person whose identity was not known and could not be ascertained.
9. He further stated that it was however, on 29-4-1994, when the complainant, alongwith his minor son, was standing in the street (where his house is situated) when in the meantime the respondent arrived there in the same Suzuki and on seeing him the boy identified the accused instantaneously, who had subjected him to sodomy, before his father. As a result of this identification by the minor boy, the father (complainant) tried to catch hold of the respondent-accused who ran away in the Suzuki. As stated earlier the complainant jumped at the risk of his life, and clung to the Suzuki which was being driven rashly by the accused. That the accused drove the Suzuki from Jinnah Colony, Abbottabad and rushed towards Abbottabad City. That on the way the complainant shouted for help and raised hue and cry to attract the attention of the public. Unfortunately nobody came to his rescue. However, when the Suzuki reached near Lady Garden, Abbottabad, two persons, riding a motor bike, were attracted and started chasing the Suzuki in question. The chase by the said two persons prompted the accused to turn the Suzuki towards Malikpura and it was at Chitta Pul that he stopped the Suzuki, got down and ran away. He was seen running away from the spot not only by the complainant but also by the other two P.Ws., namely, Qamar Zaman son of Aziz-urRehman, caste Pathan, aged about 30/32 years, resident of Sheikhulbandi and Inayatullah son of Abdul Malik, aged about 35/36 years, resident of Nawanshehr.
10. The learned counsel further contended that it was at Chitta Pul that the name and parentage of the respondent-accused was disclosed to the complainant by some of the people who had 'gathered there. That as soon as the complainant came to know about the identity of the accused/culprit, he lodged his written report with the police. According to him, in the peculiar circumstances of the case in hand, the reasons for lodging the report after a delay of 9 days stood explained reasonable/plausibly.
11. The learned counsel for the petitioner, in this respect placed reliance on case Mst. Nasreen v.
Fayyaz Khan reported in PLD 1991 SC 412. It was observed by his Lordship as under:- "There are two elements in the case which have pronouncedly been taken note of by the High Court. One, that the complainant prosecutrix's testimony alone against the accused in a case of Zina would not be enough to deny the concession of bail as it would not be enough for conviction.
And secondly, that there was unexplained delay of about 2/3 months in the lodging the F.I.R.
Accordingly, it was treated as a case for 'further inquiry' and the respondent was allowed bail.
' Prima facie, none of the two main grounds already noticed were available to the accused at the hail stage. This Court has in a large number of cases arising out of convictions under section 10 of the Offence of Zina (Enforcement of Hudood) Ordinance, 1979 considered the sole testimony of victim as enough for conviction in case it inspires confidence. The second ground regarding delay is also, prima facie, not tenable because it was not unexplained delay.
' The, prima facie, explanation for delay being on record, the learned Judge in the High Court seems to have ignored or misread it. Lastly, the question of prima facie opinion about the guilt of the accused under subsection (1) of section 497, Cr.P.C. Or subsection (2) thereof has not been properly examined in the impugned order. The easy contrivance of 'the further inquiry' against positive rulings of this Court explaining the provisions of section 497(2), Cr.P.C. Was pressed into service. It has been observed time and again that there would hardly be a case which would not require 'further inquiry'. Therefore, this element by itself is no ground for granting bail under subsection (2) of section 497. Cr.P.C. Such orders are on the very face illegal which do not fulfil the second condition regarding tentative opinion about the prima facie guilt or otherwise of the accused."
(Note.-- I have underlined the important portions of the observations for the sake of convenience).
12. The counsel for the petitioner (complainant) stated that there is nothing on the record to suggest that there was any enmity or between the complainant/his son (aged about 11/12 years) on the one hand and the respondent-accused on the other. According to him no reason exists and none indeed has been made out by the defence as to why the complainant, who is a respectable person and belongs to Lahore would charge falsely an innocent person instead of the real culprit for having committed sodomy with his boy of tender age 11/12 years). He further stated that sodomy is not only an heinous offence but is seen, in this part of the country, with contempt.
According to him the version of the complainant is fully supported/corrborated by two most natural and independent witnesses i,e, P.W. Qamar Zaman son of Aziz-urRehman resident of Sheikhulbandi and P.W. Inayatullah son of Abdul Malik resident of Nawanshehr, who have no relation, friendship or connection, whatsoever, with the complainant on the one hand and had no or enmity with the respondent-accused on the other.
13. The next contention of the learned counsel for the petitioner was that the medico-legal report,.
Dated 29-4-1994, prepared by Dr. Masood Malik, coupled with the report of the Chemical Examiner, Government of Punjab, Lahore, dated 26-5-1994 fully supported the version of the victim. The learned counsel for the petitioner, therefore, submitted that taken in this context, the story of the prosecution, as given in the F.I.R., was confidence inspiring and thus believable. It clearly showed that the accused was not involved in the present case falsely or with ulterior motive in place of the real culprit. He stated there was enough material on record to persuade the Court to come to the conclusion that there existed reasonable grounds to believe that the respondent-accused has committed a non-bailable offence. According to him the question of further inquiry into the guilt of the accused for the purposes of granting/refusing bail would not arise in the circumstances of this case. He prayed that the to the respondent-accused by the Additional Sessions Judge vide, his order, dated 26-6-1994 be cancelled as his case also falls under the prohibitory clause of section 497, Cr.P.C.
14. The learned counsel for the respondent-accused, on the other hand, submitted that the order of the learned Additional Sessions Judge was well-founded and that he fully supported the reasons given therein for granting the bail. He stated that, in the circumstances of the present case the order of the Additional Sessions Judge should not be interfered with and the bail cancellation application be, therefore, dismissed.
15. Without dilating upon the merits of the case and appreciating the evidence deeply at this stage and by making a tentative assessm ent of the evidence available on the file, I am constrained to hold that reasonable grounds do exist for believing that the accused is connected with the commission of the offence with which he has been charged and that prima facie a case exists against him for having committed offences for which the punishment provided is as under:-- "(i) 377.--- unnatural offences.--- Whoever voluntarily has carnal intercourse against the order of nature with any man, woman or animal, shall be punished with imprisonment for life, or with imprisonment of either description for a term which shall not be less than two years nor more than ten years, and shall also be liable to fine.
' Explanation.-- Penetration is sufficient to constitute the carnal intercourse necessary to the offence described in this section."
(ii) Section 12 of the Offence of Zina (Enforcement of Hudood) Ordinance, 1979.-- ' Kidnapping or abducting in order to subject person to unnatural lust.--Whoever kidnaps or abducts any person in order that such person may be subject or may be so disposed of as to be put in danger of being subjected, to the unnatural lust of any person, or knowing it to be likely that such person will be so subjected or disposed of, shall be punished with death or rigorous imprisonment for a term which may extend to twenty-five years, and shall also be liable to fine, and, if the punishment be one of imprisonment shall also be awarded the punishment of whipping not exceeding thirty stripes."
16. In the circumstances, I am of the view that the case of the respondent (accused) also falls within the prohibitory clause of section 497, Cr.P.C. And that, therefore, he was not entitled to be released on bail by the Additional Sessions Judge, Abbottabad.
17. Resultantly this bail cancellation application is accepted and the to the respondent-accused by the Additional Sessions Judge vide his order, dated 26-6-1994 is cancelled. The accused who is present in the Court, shall be taken into custody and sent to judicial lock-up forthwith.
Bail cancelled.