Dr. ANWAR ZADA vs The STATE and 2 others

MUHAMMAD YOUNIS THAHEEM, J.---Petitioner Dr. Anwar Zadar seeks bail in case FIR No. 620 dated 10.9.2016, under sections 377, 511, P.P.C. and section 53 of the Child Protection Act, 2010, registered at Police Station Timergara, District Dir Lower, as the concession of bail was refused to him by the learned lower Court vide its order dated 22.11.2016.

2. The allegations against the accused/petitioner as per FIR referred to above are that he on 09.9.2016 at 1030 hours at his private clinic while laying the victim/child on the bed for the purpose of ultrasound caught hold of him, kissed his lips and tried to enter his finger in the anus of child.

3. Arguments heard and record perused.

4. From perusal of the record, it reveals, that accused/petitioner has been directly charged in the FIR for commission of the above said offences. The offence with which the accused/petitioner is charged falls within the prohibitory limbs of section 497(1), Cr.P.C. as it is punishable under section 53 of the Khyber Pakhtunkhwa Child Protection and Welfare Act, 2010 entailing punishment up to 14 years coupled with the fact that the same is heinous in nature, as a child of 11 years of age has been allegedly put to sexual abuse and harassment by none else but a doctor, who is considered to be a Messiah in our society and belonged to a very prestigious profession where dignity, honesty, professional ethics and confidentiality of patients especially if they are women and children are considered to be the benchmarks of this noble profession since ages, as allegedly on the pretext of ultrasound the accused/petitioner not only kissed the lips of 11 years old kid, but tried to put his finger in his anus and that too in his private clinic where her mother was waiting outside by entrusting his 11 years minor child at the mercy of petitioner with the confidence that he is supposed to give medical report through ultrasound and treatment to her child/patient.

5. Furthermore, the version of prosecution is supported by statement of the victim recorded under section 164, Cr.P.C., wherein he narrated the whole story put-forward in the FIR by the complainant and medical prescriptions/receipts of the victim, which clearly shows that the victim/child visited the private clinic of the doctor/petitioner on the day of occurrence i.e. 09.9.2016. Report has been lodged promptly and if any delay has been occurred, then such kind of delay is of no consequence, as upon occurrence people gathered and police reached at the spot to save the doctor from public anger and lodged the report.

6. It would not be out of place to mention here that grandfather of the victim has submitted affidavit and stated before this court that he has no objection if accused is released on bail as compromise between parties has been effected. But learned State counsel raised serious objection on release of accused on the basis of compromise by submitting that offences are heinous relating to high moral turpitude and prosecution is not bound by private settlement amongst the parties and if accused/petitioner is released on bail in such like cases on the basis of compromise particularly relating to sexual abuse of children, then it would be against the spirit of law. So, irrespective of the consent of grandfather of the victim child, compromise could not be taken as an option for release of accused on bail as the offence for which the accused/petitioner stood nominated is non-compoundable, besides heinous in nature. In this respect reliance is placed on 2005 PCr.LJ 1181 and Khadim Ali Shah and another v. The State and another cited as PLJ 2015 Cr. C (Peshawar) 504.

7. Thus, on tentative assessm ent of the case there is sufficient material available on record which prima facie connects the petitioner with the commission of offence and at this stage of the case, he is not entitled to the concession of bail, so, bail petition stands dismissed.