2008 PLP 2102 (YLR)

M. BILAL KHAN, J.--Muhammad Shakil son of Muhammad Ashiq petitioner, who is the complainant in case F.I.R. N6.208 of 2008 dated 15-2-2008, registered with Police Station Nawankot, Lahore, under section 377, P. P. C. by filing this petition, seeks cancellation of post-arrest bail allowed to Muhammad Babar (respondent No.2) by the learned Addl. Sessions Judge Lahore, vide order dated 14-4-2008.

2. The allegation in the F.I.R. against respondent No.2 was that he along with his co-accused Muhammad Jameel had subjected the petitioner to sodomy at gunpoint one after the other.

3. Respondent No.2 was arrested on 29-2-2008. His application for post-arrest bail had been accepted by Syed Imam Ali Shah, Addl. Sessions Judge Lahore, vide order dated 14-4-2008. Feeling aggrieved of the said order the complainant has moved this application under section 497(5), Cr.P.C.

4. I have heard the learned counsel for the petitioner, the learned Deputy Prosecutor-General for the State as also the learned counsel for respondent No.2 and have perused the record brought by Jamshaid Ahmad A. S-I. , Police Station Nawankot, Lahore.

5. It has been observed that respondent No.2 is duly nominated in the F.I.R. with specific allegation that he and his co-accused had subjected the petitioner to their unnatural lust. It was respondent No.2 who had allegedly lured the victim/complainant to accompany him on the pretence of making video movie to cover a function. The victim had allegedly been taken to a school where both, respondent No.2 (Muhammad Babar) and his companion Muhammad Jameel alias Kaka, produced their pistols and commanded the petitioner to undress on victim's reluctance he (victim) was forcibly made to remove his clothing. They stuck cloth in his mouth to silence him and committed sodomy with him one after the other. The doctor who had medically examined the petitioner had observed that the patient had difficulty in sitting position due to pain in anal region; multiple fissures were noted in 5, 7, 9, 11, 12 positions along with pus in the upper region. The anal swabs had been taken and sent to the Chief Chemical Examiner. Likewise the wearing apparel of the victim i.e. his trousers, shirt and vest were also sent for chemical examination. According to the report of the Chemical Examiner, dated 18-3-2007 the clothes (trousers shirt and vest) as also the anal swabs were stained with semen. Microscopic examination of spermatozoa was positive. The finding of police with regard to the so-called innocence of respondent No.2 vide Zimni No.5 dated 3-3-2008 to the effect that although he had accompanied the victim, to the place of occurrence but did not indulge in carnal intercourse is not binding on the Court rather the same proves his presence at the spot. From the perusal of the police file it appears that the Investigating Officer had been influenced by the fact that Muhammad Babar (respondent No.2) had been implicated in the case by the complainant on account of malice as the former had been released on bail in case F.I.R. No.448/05, registered with Police Station Nawankot, Lahore under section 302/34, P.P.C., the exact wording of the Investigating Officer as incorporated by him in police diary No.5 dated 3-3-2008 reads as under:-- A plain look at the said police diary would show that an impression had designedly been created by the Investigating Officer that respondent No.2 that recently been released on bail and that the complainant of the instant F.I.R. had taken exception to his release on bail. On Court's query the learned counsel for respondent No.2 stated that respondent No.2 had been released on bail in the said murder case in the year 2005. If the complainant had any reservation on respondent No.2's release on bail why did he keep silent for three long years. Even otherwise there is absolutely nothing on record to show that the complainant for the instant case had any relationship with the complainant or the deceased in case F.I.R. No.448/2005 Police Station Nawankot or was in any way beholden to them. This goes to prove that an artificial setting had been created by the Investigating Officer, dishonestly to favour respondent No.2 what is, however, painful is that the learned Addl. Sessions Judge while deciding a case of such serious nature like the one in hand allowed himself to be hoodwinked and duped by manipulated police investigation which was nakedly partisan. He proceeded to grant bail to respondent No.2 on the basis of tainted police opinion without acquainting himself with the police record and perhaps without even bothering to go through the same. Respondent No.2 had been granted bail by Syed Imam Ali Shah, Addl. Sessions Judge who in support of his bail granting order observed as under: "As per Zimni No.5 dated 3-3-2008 it has been held by the Investigating Officer that co-accused have committed sodomy with the complainant at the relevant time while the petitioner is not involved in commission of sodomy with the complainant. It is evident from the record that the alleged pistol has not been recovered from the possession of the petitioner by the police during course of investigation of the case. It is crystal clear from the record that the petitioner was arrested by the police on 1-3-2008 and as such he is behind the bars for the period of last 1 months. It is apparent from the record that the investigation of the case is completed, the person of the petitioner is no more required by the police and as such further detention of the petitioner in jail will serve no useful purpose. In this view of the matter I find that the case of the petitioner falls within the ambit of further inquiry."

6. A reading of the aforesaid operative part of the bail granting order leaves one in no manner of doubt that bail had been allowed to respondent No.2 on laboured and artificial grounds without applicability of judicious mind. Holding that investigation is complete; that the petitioner is behind the bars for the last 1 'h months; that his person is no more required by the police; that his further detention in jail will serve no useful purpose and granting bail on such run-of-the-mill grounds in a hideous offence of sodomy was clearly an attempt to trivialize and play down the gravity of the offence. In the face of the prosecution witnesses including the victim steadfastly supporting the prosecution story, positive reports by the Medical Officer and the Chemical Examiner and absence of any ostensible malice, grant of bail to respondent No.2 was a reckless, imprudent and heedless exercise of discretion by the Addl. Sessions Judge. In this backdrop the contention of the learned counsel for respondent No.2 that concession of bail had not been misused becomes more or less irrelevant. The considerations which had weighed with the learned Addl. Sessions Judge in allowing bail to respondent No.2 were wholly insupportable in law and the bail granting order not only militates against the settled principles for grant of bail in cases which attract prohibitory clause of section 497(1), Cr.P.C. but unfortunately also exhibits the learned Addl. Sessions Judge's meagre acquaintance with the said principles.

7. Resultantly this petition is allowed and the post-arrest bail allowed to respondent No.2 by learned Addl. Sessions Judge, Lahore vide order dated 14-4-2008 is hereby recalled. Respondent No.2 who is present in Court shall be remitted to custody.

8. A copy of this order shall be transmitted to the Registrar of this Court so as to be placed in the personal dossier of Syed Imam Ali Shah, the learned Addl. Sessions Judge, Lahore. M.H./M-193/L Bail cancelled.