Ahmad Vs The State etc

JUDGMENT SHEET

PESHAWAR HIGH COURT, D.I.KHAN BENCH

(Judicial Department)

Cr.M. (BCA) No.476-D/2024.

Ahmad

Versus

The State etc

JUDGMENT

For petitioner: M/S Farooq Akhtar and Muhammad Shoaib, Advocates.

For State: Mr. Inam Ullah Khan Kundi AAG.

For respondent: Mr. Nazar Muhammad Niazi, Advocate.

Date of hearing: 09.9.2025.

INAM ULLAH KHAN, J.- Through the instant petition under Section 497(5) Cr.P.C., the petitioner Ahmad son of Mehboob has prayed for cancellation of bail granted to respondents/accused Muhammad Zubair son of Atta Ullah and Saeed son of Abdul Rasheed by learned Additional Sessions Judge-III, D.I.Khan, vide order dated 25.10.2024, in case FIR No.510 dated 30.7.2024, registered under Section 376/34 P.P.C read with Section 53 of The Khyber Pakhtunkhwa Child Protection and Welfare Act, 2010 (Khyber Pakhtunkhwa Act No.XIII of 2010) of Police Station Paharpur, District D.I.Khan.

2.The allegations against the accused/ respondents, as per FIR lodged on the report of petitioner,

are that on 30.7.2024 at 03:00 p.m (Peshen Wela), they committed sodomy with the complainant.

3.After their arrest, the respondents filed bail petition in the Court of learned Additional Sessions Judge-III, D.I.Khan, which was accepted and pursuant thereto, they were released on bail vide order dated 25.10.2024, hence, this petition for cancellation of bail.

4.I have heard the arguments of learned counsel for the parties and the learned AAG and have perused the record with their able assistance.

5.A close scrutiny of the record reveals that although the respondents were directly charged for the commission of offence, however, the medico legal report of the victim/complainant does not support the allegation of sodomy as contained in the FIR. Moreso, the FSL report regarding swab also does not support the prosecution version. Although the result qua cloth piece allegedly stained with human semen received in positive, however, same do not identify the accused, as no grouping was done by the Forensic Expert.

6.In addition to the above, by virtue of amendment made in the Code through Act No.XLIV of 2016, Section 164-B has been inserted whereby in cases under Sections 376, 377 or 378-B of PPC or attempt thereto, the Deoxyribonucleic Acid (DNA) testing has been made mandatory, if practicable, from the victim

and accused and sending of the same to the Forensic Laboratory, however, no such exercise has been carried out to bring on record sufficient material, connecting the petitioner with the offence. In the absence of any proof as well as omission of the prosecution to conduct DNA testing, this Court in the case of Muhammad Rahat Fareed’s case1, observed that:-

“Moreover, in the instant case, no compliance with the provision of Section 164-B, Cr.P.C. has been made because no samples for DNA test have been obtained either from the accused/petitioner or victim despite the fact that the word “shall” is used in the said provision, making its applicability mandatory. The prosecution must keep in mind this aspect while dealing with such like offences, in the best interest of the victim as well as the accused”.

Similarly, in Muhammad Aslam’s case 2, the august Supreme Court of Pakistan has held that:- “We have been informed that neither any DNA test nor grouping test of the semen has been conducted. In the absence of grouping test of the semen, it could not be held with certainty that the victim was subjected to zina by the petitioner especially when she is admittedly a married woman”.

7.In view of the above, the learned Court below was justified in granting bail to the accused/ respondents.

8.Besides the above, the apex Court in Sami Ullah’s case3 has held that:-

1 Muhammad Rahat Fareed1 Vs. The State and anothe (2023 P.Cr.L.J. Peshawar 436 [Abbotabad Bench] r 2 Muhammad Aslam V. The State and others (2023 SCMR 397) 3 Sami Ullah and another v. Laiq Zada and another (2020 SCMR 1115)

“Ordinarily the superior Courts were reluctant to interfere with an order extending concession of bail. The rationale behind this was that once concession of bail was granted by a Court of competent jurisdiction then very strong and exceptional grounds would be required to interfere with the concession extended to a person who was otherwise clothed with freedom. Any contrary action of the court would be synonymous to curtailing the liberty of such person, which otherwise was a precious right guaranteed under the Constitution”.

9.Besides the above, the principles for the grant of bail and cancellation thereof are quite different from each other. Once bail is granted by a competent Court of law then strong and exceptional grounds in the shape of misuse of the concession of bail and tampering with the prosecution evidence are required for the cancellation of bail which are lacking in the present case.

In Chairman NAB’s case4, it was held that:- “It has been ruled by this Court with a considered view that considerations for grant of bail and its cancellation are different. Once a Court of competent jurisdiction by exercising its powers which are discretionary in nature has issued a favourable order in respect of a person accused in an offence, this Court is always slow to interfere unless it finds that the order granting bail was against the record, perverse or unreasonable.

The above view was endorsed in Abdul Majid Afridi’s case5.

10.In addition to the above, there is no allegation that the respondents/accused, after their release, 4 Chairman NAB through PGA NAB Islamabad Vs. Muhammad Khalid (2016 S C M R 676) 5 Abdul Majid Afridi Vs. The State and another (2022 S C M R 676)

have misused the concession of bail or have ever tampered with the prosecution evidence.

11.For what has been discussed above, this petition, being devoid of merit, stands dismissed.

Announced.

Dt: 09.9.2025. Sd/--- Kifayat/CS* JUDGE

(S.B)

Hon’ble Mr. Justice Inam Ullah Khan