PLJ 2006 Cr.C. (
Present: M. Bilal Khan, J.
SONIA NAZ--Petitioner
versus
Ch. KHALID ABDULLAH and 2
others--Respondents
Crl. Misc. No. 9257/CB of
2005, decided on 19.4.2006.
Offence of Zina (Enforcement
of Hudood) Ordinance, 1979 (VII of 1979)--
----Ss. 10, 11, 16 &
18--Pakistan Penal Code, 1860 (XLV of 1860), Ss. 344, 354, 355 &
506--Criminal Procedure Code (V of 1898), S. 497(5)--Cancellation of
bail--Essentails--Trial Court while granting bail to respondents had given
authentic and logical reasons for granting concession of bail--In various
investigations conducted in present case, no direct evidence supporting
allegations of abduction or rape against respondents was found, apart from
statement of victim herself--Once Court in exercise of its discretion grants
concession of bail, the same can be cancelled only if Court comes to conclusion
that bail had been allowed on artificial grounds and that bail granting order
was absolutely whimsical and perverse--Impugned order was not shown to suffer
from any of serious infirmities calling for interference by High Court--Police
was directed to ensure full protection to applicant and to facilitate her
appearance before Court. [Pp.
836, 837 & 838] A, B & C
1989 SCMR 2063; PLD 1995 SC
34; 1995 SCMR 1249; PLD 1996 SC 241; 1996 SCMR 678; 2004 SCMR 1160; 2002 YLR
2440 and 1992 SCMR 1286, ref.
Ms. Asma Jahangir & Mr.
Jan Nisar Baloch, Advocates for Petitioner.
Ch. Riyasat Ali, Advocate
with Respondent No. 1.
Kh. Aamir Farooq and Mian
Sultan Tanvir Ahmad, Advocates with Respondent No. 2.
Mr. Tanvir Ahmad Shami,
Advocate for State.
Date of hearing : 19.4.2006.
Order
Khalid Abdullah,
Superintendent of Police (under suspension) and Jamshed Iqbal Chishti,
Inspector (under suspension), Respondents Nos. 1 and 2 herein, had been
enlarged on bail by the learned Additional Sessions Judge, Lahore vide order
dated 24.11.2005 in case F.I.R. No. 650, dated 12.10.2005, registered at Police
Station Satto Katla, District Lahore for offences under Sections 10, 11, 16, 18
of the Offence of Zina (Enforcement of Hudood) Ordinance No. VII of 1979 read
with Sections 344, 354, 355, 506 PPC and Articles 155, 156 of the Police Order,
2002.
2. Mst. Sonia Naz wife of Asim Yousaf, the
complainant in the aforesaid F.I.R., has moved this application under Section
497(5) Cr.P.C. seeking cancellation of the said concession of post-arrest bail
allowed to Respondents Nos. 1 and 2 by the learned Additional Sessions Judge.
3. The case of the complainant as it unfurled in
the F.I.R. was that on 3.5.2005, she left her residence, H-2 Block Johar Town,
Lahore about 5/6.00 p.m., for some errand on foot; she had hardly walked a few
paces when a car came from behind and stopped near her, the four occupants
thereof dragged her and shoved her into the car; one of them placed a revolver
at her ribs and warned her to be quiet, otherwise she would be killed,
whereupon she kept quiet; at some distance, the car was stopped at a deserted
place; she was blindfolded and made to wear sun glasses; they kept moving from
one place to another for four hours during which time one person constantly kept
a revolver at her ribs; thereafter the car was taken inside a garage of a
residential house and she was removed to one of the front rooms, where about
ten persons were already present; there was no window in the room, however, an
exhaust fan had been installed; there was matting on the floor and a mattress,
a water cooler and a steel tumbler were available; the room had an attached
bathroom but without any window; out of the persons present there, two/three
pushed her and locked her inside the room; occasionally somebody would deliver
food to her, however, she did not eat anything for two days; after five/six
days, a person, who brought food, came inside the room and made her talk to SP
Khalid Abdullah on mobile phone, with whom she had met earlier in connection
with the case of her husband; she implored and beseeched him for mercy and
asked for her release, who in turn threatened her that he would knock off her
arrogance; that same night SP Khalid Abdullah, who was accompanied by the
persons, who were earlier present there, woke her up with a kick and started
beating her up with shoes; he kept on asking her as to when would she again
file a writ and where would she take the application to and thereafter he tore
off her wearing apparel and after stripping her naked attempted to commit
Zina-bil-jabr, however, having been
unsuccessful in his attempt, he urinated in her mouth; thereafter SP Khalid
Abdullah called Jamshed Chishti, SHO who was also known to her previously, in
the room; after coming in the room, Jamshed Chishti undressed himself and
committed Zina-bil-Jabr with her for seven minutes despite her cries and
imploration; ten/twelve days after this incident, she was kept detained in the
room and then after blindfolding her and putting her in a car, she was left a
Thokar Niaz Baig; on account of nervousness, all that should could observe was
that it was a Coure car; the accused persons threatened her that if she ever
approached a Court of law or disclosed the incident to any one, she and her
children would be killed; since the Police were after her life, therefore, she
had been hiding in a state of fear as there was no one to stand by her. It was
for this reason that she could not gather courage to report the matter to the
police.
The motive, according to the
complainant, was that her husband Asim Yousaf, who was an employee in the
Excise and Taxation Department and was facing a police inquiry in a fraud case,
had filed a writ petition in the High Court, but the police were harassing her
and other members of her family. Resultantly, the instant F.I.R. had been
recorded.
4. The respondents had been arrested on
18.10.2005. They applied for their post-arrest bail on 18.11.2005 before the
Court of Sessions at Lahore and their application had been allowed by the
learned Additional Sessions Judge, Lahore vide order dated 24.11.2005, which
has been impugned in this application.
5. Ms. Asma Jahangir and Mr. Jan Nisar Baloch,
the learned counsel for the petitioner in support of this petition for
cancellation of bail argued that had the learned Additional Sessions Judge
acquainted himself with the observations of the Hon'ble Supreme Court recorded
from time to time in Suo Moto Case No. 12/2005, he would never have proceeded
to grant bail to the respondents; that the observation of the learned
Additional Sessions Judge that the three investigating teams had found the
respondents to be innocent is factually incorrect; that the learned Additional
Sessions Judge has not been able to fully comprehend the seriousness of the
allegations and has proceeded to grant bail; that the said learned Judge has
been overly impressed by the intention order dated 17.5.2005 passed in C.M. No.
2/2005 in Writ Petition No. 3422 of 2005 titled "Sonia Naz v. The Chief
Secretary & others", wherein the learned counsel for the petitioner in
the said writ petition had brought it to the notice of the Court that he had
received telephone calls from Sonia Naz that she could not reach the Court from
Faisalabad and had requested for adjournment; that ever since the release of
the respondents on bail, the petitioner is apprehending danger to her life at
their hands; that there is "peer pressure" on the police and that
serious threats have been received by the petitioner and her house at Faisalabad
had been raised.
6. On the other hand, Ch. Riayasat Ali, the
learned counsel for Khalid Abdullah, Respondent No. 1, argued that the trial
has already commenced on 11.3.2006, on which date a formal charge had been
framed; that the deposition of two prosecution witnesses has been completed,
one prosecution witness has been given up, the fourth prosecution witness is
being cross-examined and the next date of hearing in the trial is 24.4.2006;
that a perusal of the interim order sheet of the trial Court would show that
the respondents are fully cooperating in the trial and are not causing any
obstacle, that no application has been made either to the police or any other
executive authority or to the trial Court alleging that there is any pressure
on the complainant/petitioner or that the respondents are tampering with the
evidence or trying to suborn the witnesses; that the allegation of peer
pressure is quite preposterous inasmuch as both the respondents are under
suspension and apart from that Khalid Abdullah SP is to retire on attaining the
age of superannuation on 2.5.2006. He argued that the bail granting order was
perfectly legal and that this Court could interfere only if the said order is
arbitrary, fanciful, perverse, or whimsical. He submitted that the principles
for grant of bail and cancellation thereof are quite different and that none of
the pre-requisites for cancellation of bail are present in the instant case. He
also referred to the application purportedly made by Mst. Khurshid Begum,
mother-in-law of Sonia Naz, to the Prime Minister Secretariat on 31.5.2005,
which had been forwarded to the Inspector General of Police Punjab with a
covering letter dated 31.5.2005, wherein according to the learned counsel, Mst.
Khurshid Begum applicant had not levelled any allegation of abduction or rape;
likewise, he also referred to a forwarding letter dated 9.6.2006 of Mrs. Mehnaz
Rafi, MNA, whereby a purported application of Malik Yousaf, father-in-law of
Sina Naz, had been forwarded to the Inspector General of Police Punjab. It was
claimed by the learned counsel for Respondent No. 1 that in the said
application too there was no mention of abduction or Zina. However, since the
so-called applications did not form part of the record, therefore, I had
expressed my disinclination to look into these applications.
7. Kh. Aamir Farooq and Mian Sultan Tanvir
Ahmad, the learned counsel for Jamshed Iqbal Chishti, Respondent No. 2, while
adopting the arguments of the learned counsel for Respondent No. 1 added that
there was not an iota of evidence available against the respondents in general
and Respondent No. 2 in particular; that the learned Additional Sessions Judge
has rightly exercised his discretion and that the petitioner has not been able
to furnish any proof that the concession of bail extended to the respondents
had been misused.
8. In support of their contentions, the learned
counsel for the petitioner did not refer to any case law, however, the learned
counsel for the respondents relied on the cases, Masood v. The State and
another (1989 SCMR 2063), Tariq Bashir and 5 others v. The State (P.L.D. 1995
SC 34), Chaudhry Shujat Hussain v. The State (1995 SCMR 1249), Syed Amanullah
Shah v. The State and another (P.L.D. 1966 S.C. 241), The State v. Abdul
Ghaffar (1996 SCMR 678), Nazir Ahmad v. Muhammad Ismail and another (2004 SCMR
1160) and Munawar Khan v. Abdul Rauf Khan (2002 YLR 2440).
9. I have heard the learned counsel for the
parties at considerable length and have also gone through the record brought by
Liaqat Ali, ASI.
10. Since the Hon'ble Supreme Court of Pakistan
had taken suo moto notice of the incident (Suo Moto case No. 12/2005), which
has been narrated in the F.I.R., therefore, it would be relevant to briefly
recapitulate the events, which ultimately culminated in the registration of the
F.I.R.
The F.I.R. had been recorded
on the specific direction of the Hon'ble Supreme Court of Pakistan issued on
10.10.2005 whereby the Inspector General of Police Punjab was directed to
himself supervise the investigation as a Superintendent of Police was involved
in the case. Thereafter, the Hon'ble apex Court on more than one occasions had
expressed dissatisfaction over the conduct of investigation and had directed
that a team of three senior and most experienced Superintendents of Police
having good reputation be constituted for carrying out investigation in the
case. On one occasion, on finding out that the accused persons had not been
arrested, the Hon'ble apex Court had expressed its displeasure. On 14.11.2005,
when the matter was taken up by the Hon'ble Supreme Court, the learned
Advocate-General Punjab had submitted a report, wherein inter-alia it was stated as under:--
"During the course of
investigation, no direct evidence has come on record against the accused. However,
keeping in view the statements of Sonia Naz, her mother-in-law and
father-in-law, members of the Police Enquiry Team, Sajila Sehr, owner of beauty
parlor coupled with other evidence brought on record, SHO Satto Katla is being
directed to submit challan in Court against both the accused u/S. 10, 11, 16,
18/7/79 H.O. 344/506/354/356 P.P.C. read with 155/156 of Police Order 2002 to
face trial before the Court of competent jurisdiction."
On perusal of the said report
and the legal objections raised by the learned counsel for SP Abdullah Khalid
and Inspector Jamshed Iqbal Chishti (respondents), the Hon'ble Supreme Court
had observed that there was no occasion to dilate upon the legal objections at
that stage as it was likely to cause prejudice to either of the parties.
However, the Hon'ble Supreme Court had directed the police to proceed in the
light of the concluding paragraphs of the report reproduced hereinabove. The
Hon'ble apex Court had also directed the trial Court before whom the challan
was to be submitted to decide the case on merits, independently, without being
influenced in any manner from the proceedings before it.
11. Observations of the Hon'ble Supreme Court
recorded in its order dated 14.11.2005 are absolutely clear and do not admit of
any ambiguity, in that the Hon'ble apex Court had in explicit terms observed
that the trial Court would decide the matter independently without being
influenced in any manner from the proceedings before it, therefore, there is no
substance in the assertion of the learned counsel for the petitioner that the
learned Additional Sessions Judge had in any way overlooked or passed over the
observations of the Hon'ble Supreme Court. I have minutely gone through the
bail granting order and have noted that the learned Additional Sessions Judge
had given authentic and logical reasons for granting concession of bail to the
Respondents. I have also gone through the police record and have perused the
statements of Mst. Khurshid Begum, Malik Yousaf Khan (mother-in-law and father-in-law),
respectively of Sonia Naz and Sajila Sehr, a proprietor of a beauty parlour, as
it was claimed by the learned counsel for the petitioner that the said
statements fully implicate the respondents in the offence. I would not like to
dilate on these statements, as by so doing I would be travelling outside the
permissible confines i.e. tentative assessment of the material available on the
record. I have also gone through the investigation conducted by various police
officers including the final one conducted by the Committee headed by Aslam
Khan Tareen, Senior Superintendent of Police, who no doubt is reported to be an
outstanding police officer known for his uprightness and
incorruptibility. In all the investigations prima facie I have not been able to
find any direct evidence supporting the allegation of abduction and rape
against the present respondents apart from the statement of the victim herself.
It has time and again been held by the Hon'ble Supreme Court as also by other
superior Courts that there is a world of difference between considerations for
the grant of bail and cancellation thereof. Once a Court in exercise of its
discretion grants concession of bail, the same can be cancelled only if it
comes to the conclusion that the bail had been allowed on artificial grounds
and that the bail granting order was absolutely whimsical and perverse. It has
been held by the Hon'ble Supreme Court in the case of Mian Dad v. The State and
another (1992 SCMR 1286) that discretion left in the Court under Section 497(5)
Cr.P.C. while deciding an application for cancellation of bail was pari materia
with the principle which applied to the setting aside of the orders of
acquittal. The Hon'ble Supreme Court in one of the cases i.e. The State v.
Abdul Ghaffar (1996 SCMR 678 at page 685) had gone to the extent of observing
that only a foolish or perverse order of the trial Court was to be interfered
with in appeal against acquittal. Therefore, by analogy it can be safely stated
that for a bail granting order to be eligible for interference, the same has to
be perverse, foolish, arbitrary, fanciful and whimsical. In Mian Dad's case
(supra), it was also observed by the Hon'ble Supreme Court of Pakistan that
while under Section 497(1) Cr.P.C. the Court had no jurisdiction to grant bail,
if on merits a finding is rendered that an offence is made out punishable with
imprisonment for life, as the word used for such command was "shall",
considerations when determining the question of "cancellation" were
different because Section 497(5) Cr.P.C., under which the power of cancellation
of bail was exercised did not command the Court to cancel the bail even when
the offence was punishable with death or imprisonment for life and even if the
grant of bail was prohibited under Section 497(1) Cr.P.C.
12. Now a word or two about precedents cited by
the learned counsel for the respondents. In all citations as incorporated in
Paragraph No. 8 hereinabove, it has been stated by the Hon'ble Supreme Court
that considerations for the grant of bail and cancellation thereof are
different; that strong and exceptional grounds would be required for cancelling
bail once validly granted; that provisions of Section 497(5) Cr.P.C. are not
punitive in nature and there is no legal compulsion for cancelling the bail
granted in cases punishable with death, imprisonment for life or imprisonment
for ten years; that bail can be cancelled only if the bail granting order is
patently illegal, erroneous, factually incorrect and has resulted in
miscarriage of justice and where the accused persons are found to be trying to
tamper with the prosecution evidence or in any way misused the concession of
bail.
13. The learned counsel for the petitioner have
not been able to persuade me to hold that
the impugned order
passed by the
learned Additional Sessions Judge suffers from any of the serious
infirmities calling for interference by this Court.
14. I have also perused the file of Writ Petition
No. 3422 of 2005 (Sonia Naz v. The Chief Secretary & others) wherein the
learned counsel for Sonia Naz on 17.5.2005 had clearly stated that he had
received some telephone calls from the petitioner and that she had not been
able to reach the Court from Faisalabad and had requested that proceedings be
adjourned till the next date, so as to enable her to put in appearance before
the Court.
15. Since it has been stated that the petitioner
feels insecure and does not find herself in a position to appear in the trial
Court, I direct that the concerned Superintendent of Police,
16. For what has been discussed above, I find no
merit in this petition for cancellation of bail, which is accordingly
dismissed.
(Aziz Ahmad Tarar) Application dismissed.