ZAFAR IQBAL vs RAZA alias KHODA and 2 others
This criminal petition was filed under Section 497(5) of the Code of Criminal Procedure 1898 seeking the cancellation of bail granted to the respondents by the Additional Sessions Judge in a case registered under Sections 367-A and 377 of the Pakistan Penal Code 1860 for the alleged commission of sodomy. The core legal question was whether the lower court exercised proper judicial discretion in granting bail to the accused involved in a heinous offence where the victim fully implicated them and medical evidence corroborated the charge. The Lahore High Court held that the bail-granting order was not based on a fair assessment of the incriminating material on record, noting that the victim's statement under Section 161 of the Code of Criminal Procedure 1898 and the medical evidence supported the allegations despite a negative chemical examiner report. The court laid down the principle that bail in heinous offences like sodomy ought not to be granted lightly when prima facie incriminating evidence and medical corroboration exist, and accordingly accepted the petition to cancel the respondents' bail.
- Whether bail granted by a lower court can be cancelled under Section 497(5) of the Code of Criminal Procedure 1898 when the order fails to properly assess incriminating evidence?
- Does a negative chemical examiner report outweigh the victim's statement and medical corroboration at the bail stage in a case under Section 377 of the Pakistan Penal Code 1860?
- Are accused persons entitled to bail when charged with a heinous offence involving the sodomy of a minor supported by the victim's statement under Section 161 of the Code of Criminal Procedure 1898?
- Section 497(5), Code of Criminal Procedure 1898
- Section 367-A, Pakistan Penal Code 1860
- Section 377, Pakistan Penal Code 1860
- Section 161, Code of Criminal Procedure 1898
ORDER
Through this petition under Section 497(5) Cr.P.C. the petitioner has sought cancellation of bail granted to Raza @ Khoda and Adnan Respondents No, 1 and 2 by the learned Additional Sessions Judge, Jaranwala, vide order dated 09-04-2010 in case FIR No,31, registered at Police Station City Jaranwala, District Faisalabad, on 1801-2010, for offences under Sections 367-A and 377 PPC.
2. According to FIR, in brief, the allegation against the respondents is that they have committed sodomy with Muhammad Waqas nephew of the complainant.
3. In support of this petition learned counsel for the petitioner submits that both the respondents have committed a heinous offence; the victim has fully implicated them and his version is fully corroborated by the medical evidence; the police was reluctant to get the victim medically examined, who was medically examined under the direction of learned Area Magistrate; both the respondents were arrested in the case but the third accused namely Asif, who is absconder, is extending threats to the complainant; no one can falsely implicate a person in a case of such like nature; in these circumstances, the respondents are not entitled to the concession of bail.
4. Learned Deputy Prosecutor General has frankly conceded that the bail granting order is no based on solid reasons; the learned Additional Sessions Judge without taking into consideration the incriminating evidence has granted bail to both the respondents, who do not deserve such leniency.
5. On the other hand, learned counsel for the respondents while supporting the bail granting order states that bail has been granted to both the respondents after taking into consideration all the facts; the report of the chemical examiner is negative; the respondents have been falsely involved in the instant case with male fide intention; and this petition is liable to be dismissed.
6. Arguments heard and record perused.
7. According to FIR, while Muhammad Waqas nephew of the complainant was coming from the school both the respondents, who are neighbourers, on the pretext to drop him at his house took him with them on the motorcycle and instead of dropping him at his house, they took Muhammad Waqas to the house of Asif and then all the three including both the respondents had committed sodomy with him. The allegation against the respondents is of heinous nature. The victim in his statement under Section 161 Cr.P.C. has fully implicated them. The medical evidence further corroborates the version of the victim. The occurrence was taken place on 09-01-2010 but the police was reluctant to get the victim medically examined, so the complainant moved an application on 18-01-20-LO to the learned Area Magistrate for medical examination of the victim and then on the directions of learned Magistrate, the victim was medically examined. The doctor has observed three injuries on the person of the victim. After such a long time report of the chemical examiner can be negative. No one can involve an innocent person in the offence of such like nature, which also defames the victim and his family in the society. The bail granting order is not based on fair assessm ent of the incriminating material available on the record. Resultantly, this application is accepted and the bail granted to Respondents No, 1 and 2 vide order dated 09-04- 2010 is hereby cancelled.