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
