2013 P Cr. L J 1369
[Lahore
Before Sayyed Mazahar Ali Akbar Naqvi, J
MUHAMMAD JAMEEL and another---Petitioners
Versus
The STATE and another---Respondents
Criminal Miscellaneous 17237/B of 2012, decided on 21st December,
2012.
(a) Criminal Procedure Code (V of 1898)---
----S. 498---Penal Code (XLV of 1860), Ss. 376 & 379---Rape,
theft---Ad interim pre-arrest bail, confirmation of---Delay in lodging
F.I.R.---F.I.R. lodged with ulterior motives---Mala fide of
complainant---Ocular evidence in conflict with medical evidence---Improbable
occurrence---Effect---Accused and co-accused were real brother and sister inter
se---Co-accused allegedly took away complainant's daughter/victim from her
house, whereafter accused allegedly committed zina with her on gun point---Accused
and co-accused were also alleged to have grabbed gold ornaments from the
victim---Allegation of zina was made with a delay of one and a half months
without rendering any explanation in such regard---Complainant/father of victim
stated in court that accused and co-accused called the trouble upon themselves
as they refused to hand over gold and cash belonging to the victim, which
statement reflected the intent of the complainant qua lodging of present F.I.R.
in order to procure/settle dispute over gold and money---Medical evidence was
in conflict with ocular evidence---Accused and co-accused were real brother and
sister inter se and it did not appeal to reason that a sister would be
instrumental in facilitating her brother for committing such a heinous
offence---Mala fide of complainant was apparent from the facts and
circumstances of the case---Ad-interim pre-arrest bail already granted to
accused and co-accused was confirmed, in circumstances.
(b) Criminal Procedure Code (V of 1898)---
----S. 498---Pre-arrest bail---Merits of the case---Scope---While
delivering order with reference to pre-arrest bail, merits of the case could be
touched upon by the courts for the safe administration of criminal justice.
Meeran Bux v. The
State and another PLD 1989 SC 347 rel.
(c) Criminal Procedure Code (V of 1898)---
----S. 498---Pre-arrest bail---Grounds---Provisions of pre-arrest
bail were to be invoked where for some extraneous considerations unfounded
charge was brought against innocent persons for humiliation, unjustified
harassment and for disgracing them by trumped charges.
Dr. Abdul
Sattar v. Abdur
Rahim and 3
others 1990 PCr.LJ 630 rel.
(d) Criminal Procedure Code (V of 1898)---
----Ss. 497 & 498---Bail---Mala fide of complainant---Scope---Court
could look into and evaluate mala fide from the facts and circumstances of the
case.
Ajmal Khan v. Liaqat
Hayat and another PLD 1998 SC 97 and Syed Muhammad Firdaus and others v. The
State 2005 SCMR 784 rel.
Muhammad Shujaat Malik
for Petitioner.
Mian Muhammad Awaiz
Mazhar, Deputy Prosecutor-General and Abdul Qayyum, A.S.-I. with Record for the
State.
Complainant in person.
ORDER
SAYYED MAZAHAR ALI
AKBAR NAQVI, J.---Apprehending their arrest at the hands of the police,
through the instant petition, Muhammad
Jameel and Sumera,
petitioners seek their
pre-arrest bail in case F.I.R. No.473 of 2012, dated 16-7-2012, offence
under sections 376, 379, P.P.C., registered with Police Station, Hanjarwal,
Lahore.
2. Prosecution story, in
brief, as contained in the crime report is that about one and half months prior
to lodging the crime report, Sumera/petitioner No.2 came to the house of the
complainant and took away her daughter namely Anees Zahra aged 14 years with
her under the pretext of some work/washing feet, to the house of
Jamil/petitioner No.2, who committed zina with her on gun-point. It is
mentioned in the crime report that the petitioners also grabbed gold ornaments
weighing two and half tolas from the victim under the pretext of getting her
abortion done by a doctor.
3. Learned counsel for the
petitioners contends the petitioners are innocent and have falsely been roped
in the instant case by the complainant against the actual facts and
circumstances with mala fides. It is argued that both the petitioners are
brother and sister inter se and the story/allegations levelled in the crime
report against them do not sound sense. It is argued that though the moral
values of the society have gone to very low pith, but even then it is strange enough
that a married real sister helps her brother to commit zina with a girl of
tender age. It is contended that even
otherwise medical evidence in
the instant case do not commensurate with the occular
account as according to the prosecution's own case,
the matter was
reported to the
police on 16-7-2012 whereas
the medical examination
of the victim
was conducted on 10-7-2012 i.e. even prior to registration
of the crime report. Adds that
even as per medical
certificate of the victim (better copy
available on the file
at page 18),
she was subjected to zina 3 to 4 days ago. Learned
counsel for the petitioners while referring report of Forensic Science Agency,
Punjab, Lahore, bearing No.10-12 DNA and Serology Department Examination, dated
5-10-2012, submits that following result
and conclusion has been mentioned therein:--
"Presumptive testing
indicated the presence
of seminal material but
no spermatozoa could
be found on
item # 1, 2 and 3".
As a matter
of fact, learned counsel
submits that the
dispute over two tolas
gold and cash
worth Rs.10,000 between
the parties, has been culminated
into lodging of instant
crime report with
such a heinous
offence/allegation and the petitioners
have just been
made scapegoat. In such circumstances, learned counsel for the
petitioners prayed for grant, of relief prayed for by means of instant
petition.
4. On the other hand,
learned Deputy Prosecutor-General submits that
the petitioners are
named in the crime
report. It is
argued that the victim has
fully implicated the
petitioners in the
instant case through her statement
under section 161,
Cr.P.C. It is contended that the petitioners were found guilty during
the course of investigation. Moreover, it is a pre-arrest bail and the same can
be granted sparingly. However, when confronted qua delay/contradiction in the
occular and medical account, learned Deputy Prosecutor-General states that the
complainant is not aware about the technicalities being illiterate lady.
5. Arguments advanced pro
and contra have been heard and available record perused.
6. This Court is conscious
of the fact that considerations for grant of pre-arrest bail and post-arrest
bail are entirely on different footings, but at the same time this Court cannot
lose sight of the fact that the scope of pre-arrest bail has been widened by
the august Supreme Court of Pakistan while delivering judgment in the reported
case titled Meeran Bux v. The State and another (PLD 1989 SC 347), wherein it
has been categorically held that while delivering order with reference to
pre-arrest bail, merits of the case can also be touched upon by the Courts for
the safe administration of criminal justice. This Court has observed that a
very heinous allegation of zina has been levelled in the instant case with the
delay of one and half months without rendering any explanation in this regard
at all. Even otherwise the complainant present before the Court when confronted
stated that in fact the accused have themselves called the trouble as they
refused to hand over two tolas gold and cash worth Rs.10,000, and this fact
squarely reflects the intent of the complainant qua lodging of the instant case
in order to procure/settle the dispute over gold/money. The medical evidence in
the case in hand is in conflict with the occular account, which does not
support the case of the prosecution in any way. The question arises whether in
such circumstances it would be in the fitness of things that the petitioners
should be granted extraordinary relief or otherwise, suffice it to say that the
accusations levelled in the instant case are against real brother and
sister, who even
otherwise is having
a suckling babe
with her, and this
aspect do not
appeal to reason
that she would
be instrumental in providing all logistic facilities to her real brother
for such a heinous offence.
7. Law of bail is not a
static law but is growing all the times moulding itself with the changed
situation. Provisions of pre-arrest bail are to be invoked where for some
extraneous considerations unfounded charge may be brought against innocent
persons for humiliation, unjustified harassment and being disgraced by trumped
charges. Reliance in this regard is placed upon the reported case of Dr. Abdul
Sattar v. Abdur Rahim and 3 others (1990 PCr.LJ 630). Moreover, it is a settled
principle of law that the Court can even look into and evaluate the mala fides
from the facts and circumstances of the case, which apparently is oozing in
this case from the facts and circumstances discussed above. Respectful reliance
in this regard
is placed on the
ratio decidendi of august Supreme Court of Pakistan in the cases of
Ajmal Khan v. Liaqat Hayat and another (PLD 1998 SC 97) and Syed Muhammad
Firdaus and others v. The State (2005 SCMR 784). Moreover, liberty of a person
is a precious
right and the
same cannot be
curtailed only on the basis of
bald allegations. In such circumstances, sending the petitioners behind the
bars would not serve any useful purpose for the prosecution.
8. For the foregoing reasons
I am inclined to hold that the petitioners have made out a case for their
confirmation of pre-arrest bail. Resultantly, the instant petition is accepted
and ad interim bail already granted to the petitioners in terms of order dated
28-11-2012 is hereby confirmed subject to their furnishing fresh bail bonds in
the sum of Rs.1,00,000 each with one surety each in the like amount to the
satisfaction of learned trial Court.
Bail
confirmed.
Very good case law thanks for sharing
ReplyDeleteVery good case law thanks for sharing
ReplyDeleteGreat Job to share such type important case laws
ReplyDelete