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.
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