Post Arrest Bail 376 ppc (2013 P Cr. L J 1782)

2013 P Cr. L J 1782

[Lahore]

Before Shujaat Ali Khan, J

SHAH NAWAZ alias CHULLU---Petitioner

Versus

The STATE and another---Respondents

Criminal Miscellaneous No.4720/B of 2012, decided on 20th November, 2012.

(a) Criminal Procedure Code (V of 1898)---

----S. 497(2)---Penal Code (XLV of 1860), Ss. 376 & 511---Rape, attempting to commit offences punishable with imprisonment for life or for a shorter term---Bail, grant of---Further inquiry---Doubtful occurrence---Penetration not alleged---Effect---Accused and co-accused allegedly entered house of complainant while armed with weapons and tried to commit zina-bil-jabr with her---Reading of the F.I.R. showed that rape was not committed with the complainant, rather accused allegedly tried to commit zina with her, therefore, provisions of S.376, P.P.C. were not attracted to the present case---Co-accused had been granted bail on the basis that complainant submitted an affidavit in court to the effect that co-accused was innocent---Complainant also recorded her statement before court below to the effect that co-accused was not present at the time of occurrence---Factually if co-accused was not present at the time of occurrence, then entire story narrated by complainant seemed to be somewhat doubtful---According to the F.I.R., accused had been seducing the complainant for zina for a long period of time, but inaction on part of complainant to bring the same to the notice of police or anybody else spoke volumes on her part---Although  accused  was  alleged  to  have  been  involved  in  other cases but complainant could not establish that he was ever convicted in any case registered against him---Accused had made out a case of further inquiry into his guilt---Accused was allowed bail, in circumstances.

            Tariq Bashir and 5 others v. The State PLD 1995 SC 34 ref.

(b) Penal Code (XLV of 1860)---

----S. 376--- Rape--- Proof--- Penetration  was  essential  to  establish that rape had been committed with a woman in terms of S.376, P.P.C.

(c) Criminal Procedure Code (V of 1898)---

----S. 497(2)--- Bail---Case of further inquiry---Abscondence of accused---Effect---Accused could not be refused bail on the ground that he remained fugitive from law, when he otherwise succeeded in establishing that his case fell under S.497(2), Cr.P.C.

(d) Criminal Procedure Code (V of 1898)---

----S. 497---Bail---Registration of F.I.Rs. against accused---Effect---Accused could not be refused bail, merely on the ground that certain other criminal cases had been registered against him.

            Muhammad Ramzan Khalid Joiya for Petitioner.

            Hassan Mahmood Tareen, D.P.G. with Masood, SI along with record.

            Zafar Iqbal Bhatti for the Complainant.

ORDER

            SHUJAAT ALI KHAN, J.---Shahnawaz alias Chullu has sought post-arrest  bail  being  an  accused  of  case F.I.R. No.293 of 2011 dated 3-7-2011 registered at Police Station Noor Shah, District Sahiwal in respect of the offences under sections 376/511, P.P.C.

2.         The  allegation  against  the  petitioner,  in  precise,  is that on 20-5-2011, he while armed with pistol along with his co-accused, Sohail Ahmad, entered the house of the complainant and tried to commit zina-bil-jabr with her.

3.         Learned counsel for the petitioner contends that there is a delay of 1-1/2 months in lodging the F.I.R.; that in fact no occurrence, as alleged by the complainant, took place; that the complainant has already sworn an affidavit to the effect that Sohail Ahmad, co-accused is innocent; that though the petitioner remained on physical remand for a considerable period but no recovery has been effected from him; that the complainant is habitual to move applications against different persons and then to recover money from them; that in fact the present F.I.R. has been lodged as counterblast to that of case F.I.R. No. 363 of 2011; that the contents of the F.I.R. do not constitute offence under section 376, P.P.C. and that since the petitioner was declared innocent by the police, he did not appear before the Court, therefore, his abscondance is not material.

4.         Conversely, learned DPG, assisted by the learned counsel for the complainant, submits that the petitioner has recently been arrested in this case on 30-9-2012; that a pistol has already been recovered from the petitioner; that the petitioner remained absconder for a considerable period; that no previous enmity has been shown by the petitioner for his false involvement in this case; that delay in lodging the F.I.R. stands explained as the F.I.R. was lodged pursuant to an order passed by the learned Ex-Officio Justice of Peace on the petition filed by the complainant under section 22-A/22-B, Cr.P.C.; that number of other criminal cases have been registered against the petitioner; that he is leader of gang of a group which is defrauding the innocent citizens and that the petitioner has been found guilty during the investigation. In addition to his oral submissions learned counsel for the complainant has relied upon the case reported as Tariq Bashir and 5 others v. The State (PLD 1995 Supreme Court 34). 

5.         I have heard the learned counsel for the parties and have also gone through the documents appended with this petition as well as those, produced during the course of arguments in addition to the case-law cited by the learned counsel for the complainant.

6.         Firstly, taking up the question as to whether the provisions of section 376, P.P.C. are applicable to the facts and circumstances of the case, I am of the view that a perusal of sections 375 and 376, P.P.C. is inevitable  which for convenience of reference is being reproduced herein below:--

            "375. Rape.---A man is said to commit rape who has sexual intercourse with a woman under circumstances falling under any of the five following descriptions,--

 (i)        against her will;

 (ii)       without her consent;

 (iii)      with her consent, when the consent has been obtained by putting her in fear of death or of hurt;

 (iv)      with her consent, when the man knows that he is not married to her and that the consent is given because she believes that the man is another person to whom she is or believes herself to be married; or

 (v)       with  or  without  her  consent  when  she  is  under  sixteen years of age.

            376. Punishment for rape.---(1) Whoever commits rape shall be punished with death or imprisonment .for either description for a term which shall not be less than ten years or more than twenty five years and shall also be liable to fine".

 A bare perusal of the afore-quoted sections makes it clear that to attract provisions of section 376, P.P.C., there should be rape with a woman and to establish as to whether the rape was committed, penetration is essential but bare reading of the instant F.I.R. speaks otherwise because it has not been alleged by the complainant that rape was committed with her rather her case is that the petitioner tried to commit zina with her, therefore, the provisions of sections 376, P.P.C. prima facie do not attract to the facts and circumstances of the case.

 7.        A glance on order dated 23-12-2011 passed by the learned Additional Sessions Judge, whereby the petition for post-arrest bail filed by Sohail Ahmad, co-accused was accepted, brings it to light that the complainant appeared before the Court and submitted an affidavit to the effect that Sohail Ahmad is innocent. Moreover, she also got recorded her statement on 23-12-2011 before the learned Additional Sessions Judge, wherein she stated in unequivocal words that Sohail Ahmad is not his accused. If the said Sohail Ahmad was not present at the time of occurrence then entire story narrated by the complainant in the F.I.R. seems to be somewhat doubtful.

 8.        It is interesting to note that according to the allegation contained in the F.I.R., the petitioner had been seducing the complainant for zina for  a  long  period  but  inaction  on  the  part  of  the  complainant to bring the same to the notice of the police or anybody else speaks volume on her part.

 9.        Insofar as the objection raised by the learned DPG that as the petitioner remained absconder for considerable time and is not entitled for grant of bail is concerned, suffice it to observe when the petitioner otherwise  has  succeeded  to  establish  that  his  case  falls  under  section 497(2), Cr.P.C. bail cannot be refused on the ground that he remained fugitive from law.

 10.      Now coming to the contention of the complainant that the petitioner is also involved in other number of criminal cases, I am of he humble opinion that prior to conviction, it is presumed that every accused is innocent. Insofar as the case in hand is concerned, despite repeated queries by this Court learned counsel for the complainant has failed to establish that the petitioner was ever convicted in any case registered  against  him,  therefore,  he  cannot  be  refused  bail  merely on the ground that certain other criminal cases have been registered against him.

 11.      For what has been discussed above, I have no doubt in my mind to hold that the petitioner has made out a case for further inquiry into his guilt within the meaning of section 497(2), Cr.P.C. Consequently, this petition is accepted and the petitioner is allowed post-arrest bail subject to his furnishing bail bonds in the sum of Rs. 5,00,000 (rupees five lacs only) with one surety in the like amount to the satisfaction of the learned trial Court.

 12.      Before parting with this order, it is observed that the observations made in this order are tentative in nature and the same would have no bearing on the outcome of the trial of the case.

                                                                                                                        Bail granted