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
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