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Criminal Appeal No. 26 of 1988, decided on 24th June, 1989.

(Appeal against the judgment of the Sessions Judge, Rawalakot, dated 31 8 1988).

S. 497(5) Penal Code (XLV of 1860), Ss.377 & 341 Cancellation of bail District Magistrate not only allowed bail to the accused without having jurisdictional competence but he appeared to be even ignorant of the basic legal requirement which was abundantly clear from the short order passed by him Similarly the S.D.M. also by passing a short order allowed bail to the accused without applying his mind which was a classical example of arbitrary exercise of jurisdiction vested in him.

S. 497(5) Penal Code (XLV of 1860), Ss.377 & 341. Bail, cancellation of Sessions Judge found the accused entitled to stay on bail mainly for the reasons that he was already on bail for so many years and bail could not be refused by way of punishment Accused was charged with a bon bailable offence and was facing trial in the Court of S.D.M. It was necessary for the Sessions Judge to consider whether from the facts available on record there existed a prima facie case connecting accused with the crime or whether concession of bail could be extended to him Approach of Sessions Judge to the point involved was not in accordance with the rules governing bail matters.

S. 497(5) Penal Code (XLV of 1860), Ss.377 & 341 Bail, cancellation of Victim, a boy of 8 years of age, did not raise any alarm after the occurrence and did not go back to his home but went to his school After attending the school the boy in the afternoon on reaching home informed his mother about the incident which was admittedly unwitnessed Direct evidence only consisted of statement of the boy which was corroborated by medical evidence Shalwar of the boy was found blood stained but not sent to Chemical Examiner No discharge material was found either on the Shalwar of victim or around his anus Accused had been on bail for about two years Accused in circumstances was found entitled to stay on bail although he was allowed bail by lower Court not in accordance with law.

Sardar Muhammad Sabir Khan for Appellant.

S. Muhammad Siddique Khan for the Respondent.

This appeal directed against the order of the learned Sessions Judge, dated 31 8 1988 whereby the appeal of the appellant tiled against the order of the District Magistrate, Rawalakot allowing bail to the accused respondent passed on 5 6 1986 and bail order passed by the S.D.M. Rawalakot on 5 4 1988, were rejected has arisen in the following circumstances.

2. According to the prosecution Kashif Razzaq a child of about 8 years of age son of Muhammad Razzaq resident of Jari (Hurnamaira) who happens to be cousin of the first informant Said Hussain Khan left his house on the morning of 18 5 1986 for school. The time was about 7 30 a.m. While on his way to school Kashif Razzaq when arrived at a place which was Nallah" he found accused Muhammad Almas present there. He was dragged down to the ravine by the accused and was subjected to unnatural offence by the accused. After committing the offence the accused is alleged to have left the place after extending threat to the victim that if he disclosed the incident to anybody he would be put to death. The boy thereafter is stated to have gone to the school. On arriving back from school in the afternoon he narrated the incident to his mother. Said Hussain Khan having been informed reported the matter to the police. It is further claimed by the first informant that he had a clinic in the supply Bazar Rawalakot and after having been informed about the incident by one Mumtaz Hussain of Pachhiota he had gone to the house of his cousin Kashif Razzaq, victim of this unnatural offence. On written report made by the complainant at Police Station Rawalakot at about 4 40 p.m. on 10 5 1986 a case under section 377, P.C. read with section 12 of the Offence of Zina (Enforcement of Hudood) Ordinance was registered against the accused.

3. After having been arrested the accused respondent applied for bail before the Tehsil Criminal Court, Rawalakot which was refused on the ground that the Court had no jurisdictional competence. He then moved an application in the Court of Sessions Judge, Rawalakot on 1 6 1986 which was also rejected on 4 6 1986. The respondent through another application moved on 5 6 1986 before the District Magistrate Rawalakot was allowed bail on 5 6 1986. The State feeling aggrieved went in appeal to challenge the correctness of the bail order that was passed by the District Magistrate Rawalakot on 5 6 1986. It may be stated here that before the accused respondent moved an application for bail before the District Magistrate Rawlakot on 5 6 1986 the challan under section 377/341, P.C. had already been submitted in the Court of Sub Divisional Magistrate, Rawalakot on 3 6 1986. While the State appeal filed against the bail order passed by the District Magistrate Rawalakot on 5 6 1986 was still awaiting disposal in the Court of Sessions Judge Rawalakot, respondent had moved another application for bail on 5 4 1988 in the Court of S.D.M. Rawalakot and the bail order was passed on it on the same day i.e. 5 4 1988. Another appeal was filed by the State in the Court of Sessions Judge on 15 6 1988 challenging the correctness and legality of the bail order that was passed by the S.D.M. Rawalakot on 5 4 1988. Both these State"s appeals, one directed against the bail order that was passed by the District Magistrate Rawalakot on 5 6 1986 and the other against the bail order, dated 5 41988 that was passed by the S.D.M. Rawalakot, were heard together by the learned Sessions Judge, Rawalakot and were dismissed by him vide his judgment, dated 31 8 1988 by his single judgment now under challenge.

4. It is this order that was passed by the learned Sessions Judge, Rawalakot on 31 8 1988 correctness and legality of which has now been challenged through this appeal by the appellant complainant Said Hussain Khan. Sardar Muhammad Sabir Khan, learned counsel for the appellant submitted that the challan in the case had already been submitted in the Court of the S.D.M., Rawalakot on 3 6 1986 but the respondent deliberately suppressed this fact and applied for bail to the District Magistrate, Rawalakot who passed the bail order on 5 6 1986 without jurisdictional competence. Besides, the impugned order for having been passed on no reason and being a telegraphic in nature was a nullity in the eyes of law and as such it was of no legal consequence. Similarly the bail order that was passed by the S.D.M. Rawalakot on 5 4 1988 was also passed on no reason and was arbitrary in nature. These two orders one that was passed by the District Magistrate and the other by the S.D.M. Rawalakot were passed in total disregard to law. The impugned order, dated 31 8 1988 passed by the learned Sessions Judge for having been passed in total disregard to the rules governing bail matter was illegal and as such was not maintainable, submitted the learned counsel.

5. As against this Sardar Muhammad Siddique Khan, learned counsel for the accused respondent argued that the District Magistrate no doubt had no competence to allow bail but then the bail allowed to the accused respondent by the trial Court i.e. The Sub Divisional Magistrate, Rawalakot on 5 4 1988 was passed with jurisdictional competence and the impugned order that was passed by the learned Sessions Judge whereby the bail allowed to the accused respondent was kept intact was, in view of the facts of this case, passed in proper exercise of the discretion vested in him by the learned Sessions Judge and as such the impugned order was open to no exception. The appeal having no substance according to the learned counsel, therefore, did not merit consideration.

6. I have heard the learned counsel for the parties and have given my careful thought to the points canvassed on their behalf. Perusal of the record reveals that bail had already been declined to the accused respondent by the learned Sessions Judge on 4 6 1986 and the challan had already been filed in the Court of the Sub Divisional Magistrate, Rawalakot when the accused respondent moved the application for bail before the District Magistrate, Rawalakot on 5 6 1986. It is indeed correct that all these relevant facts were suppressed by the accused respondent when he approached the District Magistrate for bail. Besides, it is evident from the facts available on record that the District Magistrate had no jurisdictional competence either to entertain the application or to allow the bail. It is interesting to note that the grounds listed in his application for bail by the accused respondent that was moved before the District Magistrate, were that on the previous date he had been promised by the S.D.M. Rawalakot verbally that the respondent would be allowed bail on the following date. He had been busy searching him but the S.D.M. was not available anywhere, not even at his residence. So, therefore, the District Magistrate was approached. It is further listed in the application that as the District Magistrate had directed verbally to the Tehsildar, Rawalakot for allowing bail to the respondent but this officer too was avoiding to allow him bail and had left the office. As he was not traceable the accused respondent was approaching to this Court meaning thereby the District Magistrate. On the front side of this application the District Magistrate passed short order which reads:

"Arguments heard. Bail admitted. To be released against bail bond worth Rs.10,000 only, with surety of the same amount."

Perusal of this order makes it abundantly clear that the District Magistrate not only passed this order without having jurisdictional competence but appears even to be ignorant of the basic legal requirement. Similarly the Sub Divisional Magistrate, Rawalakot when approached by the accused respondent for bail through an application filed on 5 4 1988 passed a short order on the back side of the application which reads:

"Accused is allowed bail on furnishing bail bond in the sum of Rs.10,000 with one surety in the same amount."

It is thus, evident that even this order that was passed by the S.D.M., Rawalakot was passed without application of the mind and is a classical example of the arbitrary exercise of the jurisdiction that vested in him.

7. I have also gone through the impugned order that was passed by the learned Sessions Judge. The bail order that was passed by the District Magistrate in his estimation, was passed in exercise of the jurisdiction vested in him. There does not however, appear anything in the impugned order showing as to how the learned Sessions Judge came to the conclusion that the District Magistrate had the jurisdictional competence for passing the order. In his lengthy order the learned Sessions Judge found the accused respondent entitled to stay on bail mainly for the reasons that he is already on bail for so many years and the bail cannot be refused by way of punishment. The accused respondent as is obvious from the record available, is charged with a non bailable offence. He is facing trial in the Court of S.D.M. Rawalakot for the offences under section 377/341, A.P.C. It was necessary for the learned Sessions Judge to consider whether from the facts available on record there existed a prima facie case connecting the accused respondent with the crime he was charged with and in view of the facts available on record whether the concession of bail could be extended to him or not. This aspect of the case somehow was not duly considered by the learned Sessions Judge. The approach to the point involved was not in accordance with the rules governing bail matter.

8. The points involved in the case although were not attended too by the learned Sessions Judge in correct perspective but this faulty approach by the learned Sessions Judge would not, in my view, result in automatic withdrawal of the concession of bail that had already been extended/confirmed by the learned Sessions Judge in favour of accused respondent: The question has to be decided to the light of the facts available on record.

9. From the perusal of the report made to the police, it is evident that the alleged victim of this offence is a small boy of 8 years of age. According to the prosecution even when statement under section 161, Cr.P.C. was recorded he is shown to have claimed as still having pain. It is in the statement of the victim of the alleged crime that after committing unnatural offence the accused had run away from the place. He does not claim to have raised any alarm thereafter. It is no case of the prosecution that after the accused had left the place the boy had gone back to his house and had reported the incident to his mother but instead he claims to have gone to the school and after attending the school it was on his arriving back in the afternoon of that day that he is stated to have narrated the incident to his mother. He had been medically examined on the same evening and according to the medico legal report which is available on the trial Court"s file a tear at 1 o"clock position and in an area of congestion around anus opening was found by the Medical Officer. The incident admittedly is unwitnessed. All that is available on record in the nature of direct evidence is the statement of the boy himself and the corroborative evidence in the shape of medico legal report. The Shalwar of the boy that had been recovered was also found as blood stained. No discharge material is stated to have been found present either on the Shalwar of the victim or in or around the anus area of the victim. Besides, the Shalwar is shown to have been blood stained but does not appear to have been sent for chemical examination. It will not be proper to go into the detailed examination of these facts available on record and their affects because any expression of opinion as to the legal effects of the material available on record is likely to have a prejudicial effect on the case of either party. However, even for the limited purpose of bail the Court has to take tentative view of the facts available on record. As to why Kashif Razzaq, the alleged victim did not raise any alarm even after the accused had left the scene of occurrence or as to why did he not go back to his house after having been subjected to this offence and again what prevented him from narrating the incident to any of his .teachers or to his class fellows is a matter for the trial Court to consider yet even for limited purposes of bail this Court has also to keep in view these facts while considering the question of bail. Besides, the accused respondent has been on bail for about two years. Considering the circumstances of this case I find that the accused respondent is entitled to stay on bail. Under the circumstances I do not consider it proper to withdraw the concession of bail that had already been extended to the accused respondent although it had been allowed not quite in accordance with law.

10. For the aforesaid reasons the appeal stands rejected. Before parting with the case I would however, like to make it clear that any observation made to this order is tentative in nature and purely for limited purposes of bail. The trial Court shall have an independent view of the case and it shall consider and decide the same in accordance with law uninfluenced by any observation that has been "made in this order. Having made this clarification, the appeal is dismissed.

N.H.Q./368/H.CA. Appeal dismissed.

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