2006 PLP 3245 (YLR)

MUHAMMAD JEHANGIR ARSHAD, J.

Petitioner is the father of a child named Husnain Sarwar aged 7/8 years got a case registered vide F.I.R. No.375 of 2005, dated 28-7-2005 under section 12, Offence of Zina (Enforcement of Hudood) Ordinance, 1979 read with section 377, P.P.C. of Police Station, Harappa District Sahiwal for allegedly committing sodomy with his son named above. The respondent No.2, however, applied for bail before arrest in the said case and the learned Additional Sessions Judge, Sahiwal vide order dated 26-7-2005 confirmed the same. The petitioner has now through this application sought cancellation of the bail on the ground that respondent having committed a heinous offence falling within the prohibitory clause was not entitled for the grant of pre-arrest bail. Further submits that the order dated 26-8-2005 passed by Additional Sessions Judge confirming the pre-arrest bail of the respondent is destructive of prosecution case inasmuch as the learned Additional Sessions Judge in his order has expressed certain opinion specially in the words "petitioner is about 12 years, so it cannot be determined that petitioner committed unnatural offence" and that the above comments of the learned Additional Sessions Judge were highly uncalled for in the context of the case.

2. On the other hand, Mr. Tariq Zulfiqar Ahmed Chaudhry, Advocate appearing on behalf of respondent No.1, namely, Akhtar has opposed this application on the ground that respondent No.1 being aged 12 years has rightly been allowed bail by the learned Additional Sessions Judge in view of the proviso (1) to section 497, Cr.P.C. under which grant of bail to an accused under the age of 16 years even in cases punishable with death or imprisonment for life or imprisonment for ten years in a rule and that sending respondent to jail at this age would also not be in the interest of safer administration of justice keeping in view the injurious atmosphere of jail. Learned counsel for the .respondent has further argued that there is a marked difference between grant of bail and cancellation of bail and by allowing bail to the respondent the learned Additional Sessions Judge has committed no illegality nor the criteria laid down by the Honourable Supreme Court of Pakistan for cancellation of bail in PLD 1993 SC 82; 2004 SCMR 271 and 2006 SCMR 66.

3. I have considered the above arguments of the learned counsel for the parties and have also perused the record.

4. The apprehension of the learned counsel for the petitioner that the above-mentioned remarks of the learned Additional Sessions Judge are detrimental to the case of the prosecution is not based on any legal consideration as it is an established principle of law that any observation/comments in bail granting or refusing order are always tentative and have no bearing on the final decision of the case.

5. Since the proviso (1) of section 497, Cr.P:C. allows grant of bail to a person under the age of 16 as a rule even in cases punishable with death or for imprisonment for life, therefore, I am satisfied that order passed by the learned Additional Sessions Judge confirming pre-arrest bail of respondent No.1 does not suffer from any legal or jurisdiction defect hence calls for no interference. This application is accordingly dismissed. H.B.T./M-525/L Petition dismissed.