1993 PLP 212 (MLD)

This case is of some considerable importance in itself as it raises a question that needs very careful consideration and so it is necessary to refer to the relevant facts in some detail.

2. On 18‑10‑1991, at 2‑30 a.m. applicant Muhammad Wasi Qureshi lodged F.I.R. at Kharadar P.S. alleging therein that on 17‑10‑1991 between 8‑30 p.m. to 9 p.m. his son Muhammad Irfan aged about ten years was taken away by Abdul Majeed, the respondent No.i, on a motorcycle to Room No.19, Zehra Salamat Building, Kharadar, Karachi, where he was subjected to unnatural intercourse by show of force. On return to his house Muhammad Irfan informed the applicant about this incident who in turn informed Muhammad Yousuf Quadri, the Ex‑Councillor about this tragedy. In the meantime the police mobile van reached there and the respondent No.l who resides above the shop of applicant was taken to Napier P.S. The place of occurrence is situated within the jurisdiction of Kharadar P.S. and ultimately F.I.R. was lodged at Kharadar P.S., which was registered for an offence under section 12 of the Offence of Zina (Enforcement of Hudood) Ordinance, 1979. During the course of investigation both Muhammad Irfan, the victim and Abdul Majeed, the respondent No.1 were referred to Medical Officer for examination. After usual investigation the respondent No.1 was sent up to stand trial. The case was ultimately received by 11 Additional Sessions Judge (South), Karachi. The respondent No.l applied for bail before II Additional Sessions Judge (South), Karachi, but his prayer was refused vide order, dated 18‑1‑1992 mainly for the following reasons:‑‑‑ "The perusal of the police papers shows that victim Muhammad Irfan who is aged about 10 years 'and student of Vth Class was taken by the applicant/accused on a motorcycle on pistol point to his office where he committed sodomy with minor boy. This fact is fully supported by the medical evidence which shows that there were lacerations on knee and elbow position of the victim and there were tears at 12 o'clock, 9 00 o'clock and 3‑00 o'clock position of the anal canal of the victim with some bleeding at anal region and on separation of buttock, there was painful region. The medical evidence clearly shows that the victim was subjected to the fresh act of sexual intercourse. There is also medical certificate of the accused wherein doctor has opined that there was abrasion 2 c.m. x 3 c.m. on both knee‑joint of the accused and that he was capable to perform the act of sexual intercourse clearly which shows that it was the applicant/accused who has committed the act of sodomy on the victim as there were clear abrasions on both the knee joints of the accused. There is nothing on record that the complainant party has any enmity with the accused." 3.On 31‑3‑1992 the case was received in the Court of Sessions Judge (South), Karachi, after it was transferred from the Court of II Additional Sessions Judge (South) Karachi. On 13‑5‑1992 the learned Sessions Judge examined Dr. Shaukat Hussain (P.W.1) and on 3‑6‑1992 he granted bail to respondent No.1 for the following reasons:‑ "Considering the legal and the factual aspect of the case, it is brought on record firstly that the F.I.R. has been lodged with a delay though the P.S. is said to be at the distance of only about one furlong. The victim was examined by the medical officer and the medical officer on the basis of chemical report which was placed before him was of the opinion that it could be possible that in the instant case sodomy was not committed. The accused/applicant was also examined, but according to chemical report neither blood nor semen was detected from the swabs, which were sent to the chemical examiner. The accused is connected by the 161, Cr.P.C. statement of victim which is yet to be recorded. There is no other witness to support the case, as set up by the prosecution. The medical evidence which has been brought on record belies the case of the prosecution. The accused has remained in custody for eight months and the conclusion of the case will take some time. Keeping in view the above facts and circumstances, I am of the considered view that the case of accused requires further enquiry. I, therefore, admit him on bail, but subject to his furnishing surety in the sum of Rs.20,000 and P.R. Bond in the like amount." 4.On 15‑6‑1992 the applicant, the unfortunate father of Muhammad Irfan, sent an application to Hon'ble Chief Justice, which was referred to Member, Inspection Team who examined it and submitted his report. It was in these circumstances that the application sent by the applicant to Hon'ble Chief Justice was registered as an application under section 497(5), Cr.P.C.

5. I have heard the applicant in person, Mr. M. Ilyas Khan, learned counsel for respondent No.1 and Mr. Abdul Hakeem Bijarani, learned A.A.‑G. for State. The learned A.A: G. has supported the prayer of applicant for cancellation of bail of respondent No.1.

6. Mr. M. Ilyas Khan, learned counsel for respondent No.1 has raised a preliminary objection about the competency of the application made under section 497(5), Cr.P.C. at this stage when three witnesses have already been examined. He has also endeavoured to show that in view of the rule laid down by the Supreme Court in Mst. Irshad Begum v. Muhammad Afzal and another reported in 1985 SCMR 1691, The State v. Rashid Ahmad and another reported in 1988 SCMR 1129 and Muhammad Ismail v. Muhammad Rafique and another, reported in PLD 1989 SC 585, it would not be proper to cancel the bail of respondent No.1, when the trial has not only commenced, but three witnesses have been examined. The facts of all the above‑cited cases are, however, distinguishable and the rule laid down in these rulings is not attracted to the facts of the present case in which bail was granted to respondent No.1 after one witness, viz. Dr. Shaukat Hussain (P.W.1) was examined.

7. No generalisation is possible in such matters as each case has its own features. I cannot do better than quoting the observations made by this Court in the case of Ghulam Rasool v. Khadim Hussain and others reported in 1991 PCr.1J 241, which are as follows:‑ "Everything said in a judgment more particularly in a criminal judgment must be understood as having been said with reference to the facts of that particular case. This in fact is the view of the Supreme Court. There cannot be any generalisations on matters which primarily rest upon the exercise of discretion and any computerised treatment given to cases of similar nature with different facts is likely to frustrate the very purpose of exercise of discretion."

8. Again the above rule is not a rule of law and of course does not take away the powers of this Court under section 497(5), Cr.P.C. to interfere in suitable cases as undoubtedly this Court has powers to do so even of its own A motion and in the absence of any application at all on a perusal of the record. It is, however, very difficult to lay down any hard and fast rule or to give an exhaustive list of all the circumstances in which an exercise under section 497(5), Cr.P.C. can be made.

9. Coming now to the merits of the application made by the applicant it may be observed that there is prima facie evidence on record connecting the respondent No.1 with an offence, which is punishable with death or imprisonment for life. The version of Muhammad Irfan, a minor boy gets full B support from the expert evidence. Isolated statement made by Dr. Shaukat Hussain (P.W.1), torn out of or divorced from the context, cannot give a fair or proper picture of what the expert witness wanted to say. In fact it can happen that such an isolated sentence may give an impression totally different from what the witness has testified before the Court. At any rate the learned Sessions Judge was not expected to embark upon a detailed examination of the evidence at the stage of bail.

10. Much capital was sought to be made out from the fact that there was delay in lodging F.I.R. The delay has been explained satisfactorily. Again a father can hardly be conceived to bring disgrace to himself by ascribing the disgraceful role like the one in this case to a minor son in a cooked up case and that too against a neighbour for no obvious reason. It appears that the respondent No.1 must have thrown his weight into the scale otherwise I cannot conceive that any experienced Sessions Judge ‑ would in the above circumstances have granted bail to an accused person unless actuated by improper motives.

11. A point which was touched upon by learned counsel for respondent No.1 during the arguments may now be dealt with. It is contended that the High Court should be slow in exercising powers under section 497(5), Cr.P.C. The answer to this contention is again provided in the case of The State v. Mst. Shamim Akhtar alias Bharjai, reported in PLD 1992 Kar. 332, wherein it was observed:‑ "No doubt, the power available to this Court under subsection (5) of section 497, Cr.P.C. has to be exercised in extraordinary circumstances, but it is meant to be exercised in appropriate cases."

12. Unmerited grant of bail in cases of this nature is bound to shake the confidence of the litigant public in even‑handed dispensation of justice, which may produce a sense of despair and frustration. In the circumstances mentioned above, I am satisfied that the learned Sessions Judge (South), Karachi, had fallen into basic error while granting bail to respondent No. l in complete disregard of the specific prohibition of law contained in subsection (1) of section 497, Cr.P.C. As a result thereof the bail granted to respondent No.1 is cancelled who should surrender before the trial Court forthwith. The Sessions Judge shall take necessary steps for remanding him to custody, if he fails to surrender before him within three days from the receipt of this order. The application made under section 497(5), Cr.P.C. is accordingly allowed.

13. It is needless to add that the observations made above are tentative in nature and they should not influence the trial Court in any manner.

14. A copy of this order may be sent to Member, Inspection Team, who may place it before the Hon'ble Chief Justice for perusal. N.H.Q./M‑1746/K Bail cancelled.