Bail Conferm 376 ppc 2013 P Cr. L J 1369

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.

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

Case law on NADRA correction

A VERY IMPORTANT JUDGEMENT OF LAHORE HIGH COURT
AGAINST NADRA
For correction of NAME in NADRA Records/CNIC
without getting COURT ORDER
Ss. 9 & 5(3)---National Database and Registration Authority (NIC) Rules 2002, R.13---Constitution of Pakistan, Art. 199---Constitutional petition---correction on National Identity Card issued by NADRA---Petitioner had sought correction on his national identity card on the ground that the name of his father had been in correctly entered---NADRA (respondent) refused to make the necessary correction on the ground that for a change in the father's name; a court order was necessary---NADRA, to support such contention, relied on its Registration Policy and Standard Operating Procedures (SOPs)---Validity---Error was clearly a typographic mistake---National database was required to be maintain ed by NADRA, and every citizen was required to be registered and to effectuate such registration, every citizen was issued a national identity card---National Identity Card (cnic ) was a legal document for the identification of a citizen, and its issuance meant that the in formation contain ed therein was valid and correct---NADRA, by not correcting an error in its database or on the cnic , was, in fact, going against the spirit of the Ordinance, and was not performing its primary function and was perpetuating a wrong in its own database, thereby negating the purpose of the national identity card---NADRA, was bound to maintain a correct database and was bound to print correct in formation on the cnic and was obligated to correct any error in its database or the cnic it issued to a citizen---Standard Operating Procedures (SOPs) and Registration Policy were internal instructions to enable NADRA to achieve optimum level of efficiency and to ensure consistency and infirmity in its procedure and process---Standard Operating Procedures (SOPs) did not have the force of law and were not bin din g on the NADRA---Standard Operating Procedures were internal documents, at best, and could not form the basis of denying the petitioner the right to have the correct in formation maintain ed in the citizen database and printed on the cnic ---Standard Operating Procedures could not form the basis for NADRA to refuse to correct an error in its record because if the error was not corrected, it would negate the very purpose of issuing a cnic to a citizen---Delay in filing an application for correction of an office mistake could not hamper or prevent the process of actually correcting the NADRA database, or the cnic ---High Court directed NADRA to treat the pending request of the petitioner as a correction of an office mistake and to correct the petitioner's father's name in the database and issue him a new cnic ---Constitutional petition was allowed, accordingly.(2012 PLD 378 LAHORE-HIGH-COURT-LAHORE)