P L D 1994 Supreme Court 88 (PLP)

SALEEM AKHTAR, J: ‑‑The petitioner seeks leave to appeal against the judgment of the learned Judge in Chambers of the High Court whereby respondents Nos.l and 2, who were accused under section 377, P.P.C. and section 12 of the Offence of Zina (Enforcement of Hudood) Ordinance (VII of 1979), were granted bail.

2. The petitioner had lodged F.I.R. alleging that respondents No.l and 2 had committed sodomy upon him and that sodomy was also committed on his cousin Jahangir by Arshad alias Achhi and Nadeem. The learned Additional Sessions Judge refused to grant bail. The learned Judge in Chambers had also refused bail to. Arshad alias Achhi by order, dated 5‑12‑1992. However, bail was granted to respondents Nos. 1 and 2 by the impugned judgment. 3. .The learned counsel for the petitioner contended that there was sufficient material on record to reasonably connect respondents Nos.l and 2 with the ofence. The main ground which had impressed the learned Judge in granting bail was that the medical evidence did not support the version of the prosecution because "physical examination of the victim has not shown sign of sodomy or unnatural offence as there was no mark of violence on or around the anus or buttocks". There was no mark of laceration or bleeding and further that there was inordinate delay in the progress of the case. The same medical evidence was considered by the learned Judge in the case of Arshad alias Achhi and bail was refused with the observation that "as the victim has involved the petitioner in this case and his statement gets corroboration from the medico‑legal report as well as from the result of the Chemical Examiner's report, hence there exist reasonable grounds to believe that the petitioner is involved in a case which falls within the prohibitory clause". On the same set of medical evidence, two contradictory opinions cannot be formed. At this stage it is not necessary to appreciate and probe into the evidence on record. One has merely to examine it to see whether prima facie the evidence is sufficient to connect the accused with the crime. Without commenting upon the nature of medical evidence for purposes of bail application it is sufficient to mention that in spite of all these remarks referred to by the learned Judge, the doctor has' also certified that sodomy has been committed on the petitioner.

4. The learned counsel has also pointed out that after respondent No.l was released on bail, he committed murder of petitioner's father as he had refused to accede to his demand for compromise of the case. In this regard the learned counsel has filed F.I.R. lodged by the petitioner against respondent No.l, dated 24‑8‑1993. Be that as it may, :the fact remains that the petitioner has succeeded in establishing that respondent No.l has abused concession of bail granted to him. It is a well‑settled principle of law that granting of bail in a non‑bailable offence is a concession allowed to an accused which implies that during his term of release on bail he would not misuse this concession or commit any crime. Where a person released on bail commits acts of violence in revenge against the complainant, prosecution witnesses or the police, his bail is liable to be cancelled. But before cancelling bail on such grounds, there should be clear proof on record of the allegation of misuse of the privilege of bail. In the present case sufficient evidence to this effect has been brought on record which justifies cancellation of bail.

5. Another ground on which bail was granted is that .there was inordinate delay in proceeding with the case. From the record it seems that the trial Judge has gone on ex‑Pakistan leave and the allegation is that he is not likely to return back. Merely because an officer is absent or has taken long leave, does ~.. not mean that the trial will indefinitely be delayed as proper arrangements for trial by other Court of competent jurisdiction as provided by law can always be made. If any advantage of such delay has to be given, it should be as provided by law and not otherwise. Respondents No.1 and 2 have not only been charged under section 377, P.P.C., but also under section 12 of the Offence of Zina (Enforcement of .Hdood) Ordinance VII of 1979, which provides punishment with death or rigorous imprisonment for a term which may extend to 25 years and also fine.

106. In all these circumstances, we convert the petition into appeal anti allow it. We set aside the impugned judgment and cancel the bail allowed to) respondents Nos.l and,

2. M.BA./T‑90/S Bail cancelled.