1999 S C M R 338
1999 S C M R 338
[Supreme Court of Pakistan]
Present: Muhammad Bashir Jehangiri and Sh. Riaz Ahmed, JJ
MUHAMMAD SHARIF---Petitioner
versus
SHAFQAT HUSSAIN alias SHAUKAT and another---Respondents
Criminal Petition for Leave to Appeal No.120 of 1998, decided on 17th November, 1998.
(On appeal against the judgment and order dated 20-7-1998 of the Lahore High Court, Rawalpindi Bench in Crl. Misc. No.489-B/1998).
(a) Criminal Procedure Code (V of 1898)---
----S. 497---Penal Code (XLV of 1860), S. 377---Offence of Zina (Enforcement of Hudood) Ordinance (VII of 1979), S. 12---Bail, grant of---Allegation of sodomy---Merely because the accused was 16 years of age would not make him entitled to the grant of bail automatically---Each case has to be examined in the light of its own facts and discretion has to be exercised judiciously and not arbitrarily.
(b) Criminal Procedure Code (V of 1898)---
----Ss. 497 & 498---Bail, gram and cancellation of---Principles---No hard and fast rule can be laid down that bail should not be cancelled merely because the trial has commenced or is likely to commence---Every case is to be examined in the light of its own facts and the question to be determined would be as to whether a person was entitled to the grant of bail under 5.497, Cr.P.C.
(c) Criminal Procedure Code (V of 1898)---
----S. 498---Penal Code (XLV of 1860), S. 377---Offence of Zina (Enforcement of Hudood) Ordinance (VII of 1979), S. 12---Bail, cancellation of---Allegation of sodomy---No enmity between the parties existed and it was not a case of false implication---Victim a 9 years old child also had no enmity with the accused so as to make such allegation which could also stigmatize him---Delay in lodging F.I.R. had been excluded, thus, did not cast any doubt upon the prosecution case---Accused, in circumstances, was not entitled to the grant of concession of bail---Supreme Court converted the petition into appeal and bail granted to accused was ordered to be cancelled.
(d) Criminal trial---
----Age---Bail, grant of---Merely because accused was 16 years of age would not make him entitled to the grant of bail automatically---Every case has to be examined in the light of its own facts and discretion has to be exercised judiciously and not arbitrarily.
M. Fayyaz Ahmed Khawaja, Advocate Supreme Court and M.A. Zaidi, Advocate-on-Record for Petitioner.
Malik Rab Nawaz Noon, Advocate Supreme Court and Ijaz Muhammad Khan, Advocate-on-Record for Respondent No. 1.
Ch. M. Akram, Advocate Supreme Court for the Advocate-General, Punjab for the State.
Date of hearing: 17th November, 1998.
ORDER
SH. RIAZ AHMED, J.-----The petitioner seeks leave to appeal against the judgment and order dated 2Q-7-1998 delivered by a learned Judge of the Lahore High whereby the respondent Shafqat Hussain alias Shaukat was granted bail in a case registered against him under section 377, P.P.C. read with section 12 of the Office of Zina (Enforcement of Hudood) Ordinance, 1979 (hereinafter called the Ordinance).
2. The occurrence in this case took place on 4-4-1998 at about 11-00 a.m. and was reported by Muhammad Sharif complainant/petitioner at Police Station 4 Kotli Satian on 6-4-1998. In brief the complainant stated that on 2-4-1998 his nephew Wajid Mahmood, aged about 9 years, resident of Dhoke Thal Dakhli, Parandla went to see his maternal uncle in village Danoi. On 4-4-1998 at about 11-00 a.m. Wajid Mahmood went to jungle alongwith a cow to graze. Respondent, Shaukat son of Rizwan, resident of Danoi, called Wajid Mahmood at the back of a mountain where he put off his shalwar and forcibly committed sodomy on Wajid Mahmood. The alarm raised by Wajid Mahmood attracted his maternal uncle Zahoor Ahmad and his wife Mst. Khanam Jan, both residents of Danoi, who reached the scene of occurrence whereupon the respondent ran away alongwith his Shalwar. Zahoor Ahmad, maternal uncle of the victim proceeded to Rawalpindi to apprise the complainant Muhammad Sharif about the occurrence whereupon the complainant accompanied by Wajid Mahmood reached the police station and lodged the F.I.R. On the same day, Wajid Mahmood was medically examined and a contusion measuring 2 x 3 cm on the left knee was found. Tenderness on the perennial region was noticed. Shalwar was stained with semen, which was sent to the chemical examiner. In the opinion of the doctor, Wajid Mahmood had been subjected to sodomy. The respondent was arrested and on 19-4-1998 he was also examined and in the opinion of the doctor, there was nothing to suggest that the respondent was important. The respondent invoked the jurisdiction of the Sessions Court, Rawalpindi for the grant of bail and his application was heard by an Additional Sessions Judge, who dismissed the same vide order dated 1-6-1998. The respondent then invoked the jurisdiction of the High Court and a learned Judge of that Court vide order impugned allowed bail to the respondent. The complainant seeks leave to appeal against the order impugned.
3. We have heard the learned counsel for the petitioner as well as the caveator/respondent and the State. The learned counsel for the petitioner vehemently argued that the exercise of discretion by the learned Judge of the Lahore High Court was not in consonance with the principles governing exercise of such discretion. It was argued that the victim of sodomy Wajid Mahmood, a child of 9 years was subjected to unnatural sexual intercourse and therefore, no reasonable ground existed to believe that the respondent is not guilty of the offence punishable with rigorous imprisonment of 10 years. It was urged that the case of the respondent falls within the prohibitory clause of section 497, Cr.P.C. and there being no reasonable ground to believe that the respondent was not guilty of the commission of the offence, the learned Judge in the Lahore High Court had erred in granting bail to the respondent. The learned counsel for the petitioner also critized the order of the learned Judge of the High Court whereby the applicability of section 12 of the Ordinance was excluded. As far as this aspect of the case is concerned, in fact both the learned counsel for the petitioner and the respondent had conceded before the learned Judge of the High Court that the facts and circumstances of the case did not attract section 12 of the Ordinance because Wajid Mahmood, victim of attack had not been kidnapped or abducted for the purpose of commission of sodomy. We also subscribe to this view in the light of the judgment of this Court reported as Shamas Saeed Ahmad Khan v. Shafaullah and another (1985 SCMR 1822). In this case, it was laid down by this Court that merely because the victim was moved a few paces in terrorem or shoved along to a suitable place for committing sodomy would not make an additional offence under section 12 of the Ordinance. In another judgment reported as Muhammad Akhtar v. Muhammad Shafique (1986 SCMR 533), it was laid down by this Court that removal of child only a few paces with the object and purpose to commit sodomy and not at all to remove or take away the child from the lawful guardianship will not make an additional offence under section 12 of the Ordinance.
4. It was further urged before us on behalf of the respondent that this case was covered by proviso (1) to section 497(1), Cr.P.C., inasmuch as the respondent was less than 16 years of age and therefore he was entitled to the grant of bail. In support of this plea, reliance has been placed on the date of birth of the respondent as entered in the school record, which indicates that the, respondent was born on 10-5-1983 and was a student of 10th class whereas the prosecution has placed reliance upon the birth entry of the respondent as recorded in the office of the Union Council, which shows that the respondent was born on 10-4-1982. Normally there is a tendency not to get the correct date of birth recorded in the school record on account of the future benefits in service etc. In this view of the matter, we are of the view that the date of birth as entered in the record of the Union Council is correct and according to this date of birth, the respondent was 6 days less than 16 years of age on the date of occurrence. Furthermore, it has been time and again laid down that merely because a person is 16 years of age would not make him entitled to the grant of bail automatically. Each case has to be examined in the light of its own facts and the discretion has to be exercised judicially and not arbitrarily. The learned counsel for the respondent contended that the challan in this case has been submitted and the trial is likely to commence and therefore at this stage bail should not be cancelled. The contention is devoid of force in the circumstances of this case. Every case is to be examined in the light of its own facts and the crucial question arising for determination would be as to whether a person is entitled to the grant of bail under the provisions of section 497, Cr.P.C., therefore, no hard and fast rule can be laid down that the bail should not be cancelled merely because the trial has commenced or is likely to commence. The possibility cannot be ruled out that there can be cases in which prima facie a person would be entitled to the grant of bail, but during the trial material may come on record to show that such person has committed the offence. Thus in these circumstances, the trial Court would be at liberty to cancel the bail and therefore as already observed, no hard and fast rule can be laid down that the commencement of the trial would debar a Court to cancel the bail.
5. As far as the circumstances of this case are concerned, there is no enmity between the parties, and therefore, it is not a case of false implication. It was also argued on behalf of the respondent that there was delay in lodging the F.I.R., but in our view, it has been explained because the victim, a child aged 9 years, had gone to see his maternal uncle from the house of the complainant, who happens to be his paternal uncle and after the occurrence the maternal uncle of the victim thought it appropriate to first inform the guardian of the child at Rawalpindi and therefore he proceeded to Rawalpindi to apprise the complainant about the occurrence and it was thereafter that the F.I. R. was lodged. Hence they delay in this case, prima facie, would not cast any doubt upon the prosecution case. The victim had no enmity with the respondent so as to make such allegation, which can also stigmatize him.
6. For the foregoing reasons, we are of the view that the respondent was not entitled to the grant of concession of bail. We convert this petition into appeal and allow the same. Resultantly, the bail granted to the respondent is cancelled. He will be taken into custody forthwith. We further observe that the findings arrived at by this Court are tentative in nature and would not influence the mind of the trial Court while determining the guilt or innocence of the respondent.
M.B.A./M-263/S Appeal allowed.
[Supreme Court of Pakistan]
Present: Muhammad Bashir Jehangiri and Sh. Riaz Ahmed, JJ
MUHAMMAD SHARIF---Petitioner
versus
SHAFQAT HUSSAIN alias SHAUKAT and another---Respondents
Criminal Petition for Leave to Appeal No.120 of 1998, decided on 17th November, 1998.
(On appeal against the judgment and order dated 20-7-1998 of the Lahore High Court, Rawalpindi Bench in Crl. Misc. No.489-B/1998).
(a) Criminal Procedure Code (V of 1898)---
----S. 497---Penal Code (XLV of 1860), S. 377---Offence of Zina (Enforcement of Hudood) Ordinance (VII of 1979), S. 12---Bail, grant of---Allegation of sodomy---Merely because the accused was 16 years of age would not make him entitled to the grant of bail automatically---Each case has to be examined in the light of its own facts and discretion has to be exercised judiciously and not arbitrarily.
(b) Criminal Procedure Code (V of 1898)---
----Ss. 497 & 498---Bail, gram and cancellation of---Principles---No hard and fast rule can be laid down that bail should not be cancelled merely because the trial has commenced or is likely to commence---Every case is to be examined in the light of its own facts and the question to be determined would be as to whether a person was entitled to the grant of bail under 5.497, Cr.P.C.
(c) Criminal Procedure Code (V of 1898)---
----S. 498---Penal Code (XLV of 1860), S. 377---Offence of Zina (Enforcement of Hudood) Ordinance (VII of 1979), S. 12---Bail, cancellation of---Allegation of sodomy---No enmity between the parties existed and it was not a case of false implication---Victim a 9 years old child also had no enmity with the accused so as to make such allegation which could also stigmatize him---Delay in lodging F.I.R. had been excluded, thus, did not cast any doubt upon the prosecution case---Accused, in circumstances, was not entitled to the grant of concession of bail---Supreme Court converted the petition into appeal and bail granted to accused was ordered to be cancelled.
(d) Criminal trial---
----Age---Bail, grant of---Merely because accused was 16 years of age would not make him entitled to the grant of bail automatically---Every case has to be examined in the light of its own facts and discretion has to be exercised judiciously and not arbitrarily.
M. Fayyaz Ahmed Khawaja, Advocate Supreme Court and M.A. Zaidi, Advocate-on-Record for Petitioner.
Malik Rab Nawaz Noon, Advocate Supreme Court and Ijaz Muhammad Khan, Advocate-on-Record for Respondent No. 1.
Ch. M. Akram, Advocate Supreme Court for the Advocate-General, Punjab for the State.
Date of hearing: 17th November, 1998.
ORDER
SH. RIAZ AHMED, J.-----The petitioner seeks leave to appeal against the judgment and order dated 2Q-7-1998 delivered by a learned Judge of the Lahore High whereby the respondent Shafqat Hussain alias Shaukat was granted bail in a case registered against him under section 377, P.P.C. read with section 12 of the Office of Zina (Enforcement of Hudood) Ordinance, 1979 (hereinafter called the Ordinance).
2. The occurrence in this case took place on 4-4-1998 at about 11-00 a.m. and was reported by Muhammad Sharif complainant/petitioner at Police Station 4 Kotli Satian on 6-4-1998. In brief the complainant stated that on 2-4-1998 his nephew Wajid Mahmood, aged about 9 years, resident of Dhoke Thal Dakhli, Parandla went to see his maternal uncle in village Danoi. On 4-4-1998 at about 11-00 a.m. Wajid Mahmood went to jungle alongwith a cow to graze. Respondent, Shaukat son of Rizwan, resident of Danoi, called Wajid Mahmood at the back of a mountain where he put off his shalwar and forcibly committed sodomy on Wajid Mahmood. The alarm raised by Wajid Mahmood attracted his maternal uncle Zahoor Ahmad and his wife Mst. Khanam Jan, both residents of Danoi, who reached the scene of occurrence whereupon the respondent ran away alongwith his Shalwar. Zahoor Ahmad, maternal uncle of the victim proceeded to Rawalpindi to apprise the complainant Muhammad Sharif about the occurrence whereupon the complainant accompanied by Wajid Mahmood reached the police station and lodged the F.I.R. On the same day, Wajid Mahmood was medically examined and a contusion measuring 2 x 3 cm on the left knee was found. Tenderness on the perennial region was noticed. Shalwar was stained with semen, which was sent to the chemical examiner. In the opinion of the doctor, Wajid Mahmood had been subjected to sodomy. The respondent was arrested and on 19-4-1998 he was also examined and in the opinion of the doctor, there was nothing to suggest that the respondent was important. The respondent invoked the jurisdiction of the Sessions Court, Rawalpindi for the grant of bail and his application was heard by an Additional Sessions Judge, who dismissed the same vide order dated 1-6-1998. The respondent then invoked the jurisdiction of the High Court and a learned Judge of that Court vide order impugned allowed bail to the respondent. The complainant seeks leave to appeal against the order impugned.
3. We have heard the learned counsel for the petitioner as well as the caveator/respondent and the State. The learned counsel for the petitioner vehemently argued that the exercise of discretion by the learned Judge of the Lahore High Court was not in consonance with the principles governing exercise of such discretion. It was argued that the victim of sodomy Wajid Mahmood, a child of 9 years was subjected to unnatural sexual intercourse and therefore, no reasonable ground existed to believe that the respondent is not guilty of the offence punishable with rigorous imprisonment of 10 years. It was urged that the case of the respondent falls within the prohibitory clause of section 497, Cr.P.C. and there being no reasonable ground to believe that the respondent was not guilty of the commission of the offence, the learned Judge in the Lahore High Court had erred in granting bail to the respondent. The learned counsel for the petitioner also critized the order of the learned Judge of the High Court whereby the applicability of section 12 of the Ordinance was excluded. As far as this aspect of the case is concerned, in fact both the learned counsel for the petitioner and the respondent had conceded before the learned Judge of the High Court that the facts and circumstances of the case did not attract section 12 of the Ordinance because Wajid Mahmood, victim of attack had not been kidnapped or abducted for the purpose of commission of sodomy. We also subscribe to this view in the light of the judgment of this Court reported as Shamas Saeed Ahmad Khan v. Shafaullah and another (1985 SCMR 1822). In this case, it was laid down by this Court that merely because the victim was moved a few paces in terrorem or shoved along to a suitable place for committing sodomy would not make an additional offence under section 12 of the Ordinance. In another judgment reported as Muhammad Akhtar v. Muhammad Shafique (1986 SCMR 533), it was laid down by this Court that removal of child only a few paces with the object and purpose to commit sodomy and not at all to remove or take away the child from the lawful guardianship will not make an additional offence under section 12 of the Ordinance.
4. It was further urged before us on behalf of the respondent that this case was covered by proviso (1) to section 497(1), Cr.P.C., inasmuch as the respondent was less than 16 years of age and therefore he was entitled to the grant of bail. In support of this plea, reliance has been placed on the date of birth of the respondent as entered in the school record, which indicates that the, respondent was born on 10-5-1983 and was a student of 10th class whereas the prosecution has placed reliance upon the birth entry of the respondent as recorded in the office of the Union Council, which shows that the respondent was born on 10-4-1982. Normally there is a tendency not to get the correct date of birth recorded in the school record on account of the future benefits in service etc. In this view of the matter, we are of the view that the date of birth as entered in the record of the Union Council is correct and according to this date of birth, the respondent was 6 days less than 16 years of age on the date of occurrence. Furthermore, it has been time and again laid down that merely because a person is 16 years of age would not make him entitled to the grant of bail automatically. Each case has to be examined in the light of its own facts and the discretion has to be exercised judicially and not arbitrarily. The learned counsel for the respondent contended that the challan in this case has been submitted and the trial is likely to commence and therefore at this stage bail should not be cancelled. The contention is devoid of force in the circumstances of this case. Every case is to be examined in the light of its own facts and the crucial question arising for determination would be as to whether a person is entitled to the grant of bail under the provisions of section 497, Cr.P.C., therefore, no hard and fast rule can be laid down that the bail should not be cancelled merely because the trial has commenced or is likely to commence. The possibility cannot be ruled out that there can be cases in which prima facie a person would be entitled to the grant of bail, but during the trial material may come on record to show that such person has committed the offence. Thus in these circumstances, the trial Court would be at liberty to cancel the bail and therefore as already observed, no hard and fast rule can be laid down that the commencement of the trial would debar a Court to cancel the bail.
5. As far as the circumstances of this case are concerned, there is no enmity between the parties, and therefore, it is not a case of false implication. It was also argued on behalf of the respondent that there was delay in lodging the F.I.R., but in our view, it has been explained because the victim, a child aged 9 years, had gone to see his maternal uncle from the house of the complainant, who happens to be his paternal uncle and after the occurrence the maternal uncle of the victim thought it appropriate to first inform the guardian of the child at Rawalpindi and therefore he proceeded to Rawalpindi to apprise the complainant about the occurrence and it was thereafter that the F.I. R. was lodged. Hence they delay in this case, prima facie, would not cast any doubt upon the prosecution case. The victim had no enmity with the respondent so as to make such allegation, which can also stigmatize him.
6. For the foregoing reasons, we are of the view that the respondent was not entitled to the grant of concession of bail. We convert this petition into appeal and allow the same. Resultantly, the bail granted to the respondent is cancelled. He will be taken into custody forthwith. We further observe that the findings arrived at by this Court are tentative in nature and would not influence the mind of the trial Court while determining the guilt or innocence of the respondent.
M.B.A./M-263/S Appeal allowed.
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