PLJ 2008 Cr.C. (
[
Present: Hasnat Ahmad Khan, J.
GHULAM YASIN etc.--Petitioners
versus
STATE--Respondent
Crl. Misc. No. 1305-B of 2007, decided on 5.9.2007.
(i) Criminal Procedure Code, 1898 (V of 1898)--
----S. 497(2)--Offence of Zina (Enforcement of Hadood) Ordinance, 1979--S. 10--Pakistan Penal Code, (XLV of 1860), S. 354-A--Criminal proceedings were triggered off--Delay of 25/20 hours in lodging F.I.R.--Story was neither probable nor plausible--S. 10 of Offence of Zina (Enforcement of Hadood) Ordinance, was deleted however ,S. 354-A, PPC was added--In consistency between oral evidence and medical report--Benefit of doubt--Medico legal certificate and report of chemical examiner negated prosecution version whereafter the offence u/S. 16 of the Offence of Zina (Enforcement of Hadood) Ordinance, was deleted, however, the offence u/S. 354-A, PPC was added--Version of victim qua allegation of rape was disbelieved by investigating agency itself--Benefit of doubt can be granted to accused even at bail stage--Prosecution can be adequately compensated by convicting and sentencing the accused but innocent persons after undergoing unjustified pre-trial punishment cannot be adequately compensated in case of their acquittal--Bail accepted.
[Pp. 180 & 181] B & F
(ii) Pakistan Penal Code, 1860 (XLV of 1860)--
----S. 354-A--Contents--Secluded place--Clothes of victim were not stripped off in public view and the offence was committed after dragging the victim to a secluded place--Question as to whether the offence u/S. 354-A of PPC was committed or it was simply a case of committed of offence u/S. 354 of PPC would be required further inquiry. [Pp. 179 & 180] A & C
(iii) Pakistan Penal Code, 1860 (XLV of 1860)--
----S. 354-A--Contents of FIR--Prima facie--Possibility of false implication of accused--Offence of stripping off the clothes of the victim was not seen by two ladies--Held: Large number of able bodied men belonging to same family have been roped in such case, prima facie due to the background of occurrence as narrated in FIR--Possibility of false implication of accused just to widen the net cannot be ruled out. [P. 181] D
(iv) Bail--
----Benefit of doubt--Compensated by convicting and sentencing--Benefit of doubt can be granted to accused even at bail stage--In case of grant of mistaken relief of bail the prosecution can be adequately compensated by convicting and sentencing the accused but innocent persons after undergoing unjustified pre trial punishment cannot be adequately compensated in case of their acquittal. [P. 181] E
Malik Mumtaz Akhar, Advocate for Petitioners.
Mr. Nadir Manzoor Duggal, Deputy Prosecutor General for State.
Mr. Abdul Rehman Khan Laskani, Advocate for Complainant.
Date of hearing: 5.9.2007.
Order
Petitioners seek post-arrest bail in case FIR No. 348/2006 dated 15.11.2006 registered at Police Station Saddar Alipur, District Muzaffargarh, in respect of offences under Section 10 of the Offence of Zina (Enforcement of Hudood) Ordinance, 1979, Section 354-A, P.P.C. was later on added.
2. Criminal proceedings in this case were triggered off at the instance of Malik Allah Bakhsh complainant, according to whom the occurrence took place on 14.11.2006. While lodging the F.I.R. he further alleged that on 14.11.2006 his wife namely Mst. Nazir aged about 50 years reported to him that while she was on the way to her house alongwith Mst. Haseena and Mst. Razia, ten accused including the petitioners emerged from the cotton field apprehended/over-powered her (Mst. Nazir) on which her companions namely Haseena and Razia took to their heels, whereafter she (Mst. Nazir) was allegedly dragged by all the accused towards a Pacca drain where her clothes were stripped off and Ghulam Yasin, Muhammad Iqbal and Fayyaz Hussain (petitioners) alongwith Ghulam Shabir co-accused allegedly raped said Mst. Nazir turn by turn. After committing rape the above-mentioned culprits, allegedly, decamped from the spot while leaving Mst. Nazir victim in naked position. It was further reported by the victim to the complainant that while leaving the spot the said outlaws had torn off the clothes of the said victim who set off to her house while covering her body with a `dopata'. After covering a distance of 2-acres she, statedly, met her sons namely Abdul Sattar and Abdul Ghaffar alongwith Sher Muhammad and Khair Muhammad P.Ws., who had reached there after receiving the information of the said occurrence through Razia and Haseena, P.Ws. Raison d'etre behind the occurrence was stated to be that Ghulam Shabbir co-accused had a grudge against Abdul Salam, son of the victim, who had raped his (Ghulam Shabir's) daughter namely Mst. Mumtaz Bibi. Hence the F.I.R. was registered.
3. In support of this petition learned counsel for the petitioners had contended that there is delay of 25/26 hours in lodging the F.I.R. that the prosecution story is nothing but a cooked book; that the petitioners have falsely been involved in this case; that the prosecution story is neither probable nor plausible; that wild allegations have been levelled against large number of persons including the petitioners belonging to the same family; that during the investigation it was found that Mst. Nazir, the alleged victim, was never raped by any body and therefore, while submitting the report under Section 173, Cr.P.C. the offence under Section 10 of the Offence of Zina (Enforcement of Hadood) Ordinance, 1979 was deleted, however, offence under Section 354-A, P.P.C. was added; that barring the statement of victim there is no independent evidence to support the claim of the victim; that in fact Abdul Salam, who is the son of the victim and the complainant, had raped Mumtaz Bibi, daughter of Ghulam Shabir co-accused and to avoid the registration of case for said offence and with a view to pressurize Ghulam Shabir co-accused, this false case was got registered; that Ghulam Yasin and Tanvir petitioners are real brothers, while Fayyaz and Iqbal petitioners are sons-in-law of Ghulam Yasin petitioner, therefore, it is not believable that said accused would jointly commit offence of rape in the manner as alleged by the prosecution, that as the allegation of rape levelled by the victim was disbelieved during the investigation, therefore, no implicit reliance can be placed on the statement of such like alleged victim, regarding the allegation of commission of offence under Section 354-A, P.P.C. and that there is seeming inconsistency between oral evidence and medical report. Lastly it has been contended that a perusal of the F.I.R. would reveal that the provisions of Section 354-A, P.P.C. are not attracted to this case as the alleged offence, even if be believed on its face value, was not committed in the public view and the same was admittedly committed in a secluded place. While concluding his arguments learned counsel for the petitioners has relied upon the cases of Muhammad Ashraf and 3 others v. The State (PLJ 1989 Cr.C. (Lahore) 419), Muhammad Altaf v. Nazir Ahmad and another (PLD 1975 Lahore 568), Tariq Ali Khan v. The State (KLR 1988 Criminal Cases 83) and Muhammad Sarwar and another v. The State (1997 P.Crl.LJ 418).
4. Conversely, the learned Deputy Prosecutor General assisted by the learned counsel for the complainant has strenuously opposed the bail application contending that the petitioners who have committed an abominable and heinous offence are specifically named in the F.I.R.; that the offence allegedly committed by the petitioners falls within the prohibitory clause and that there is sufficient material on the record to connect the petitioners with the alleged crime.
5. The parties have been heard and the relevant record perused.
6. The contents of the F.I.R. itself reveal that Ghulam Shabir co-accused had grudge against Abdul Salam who happens to be the son of the victim and the complainant for committing rape against his daughter namely Mumtaz Bibi. The petitioners have furnished a copy of the application dated 17.11.2006 submitted by said Mumtaz Bibi whereby she had sought registration of case against ten persons for committing gang-rape with her. It has been submitted at the bar that on the orders passed by this Court a case under Section 10 of the Offence of Zina (Enforcement of Hadood) Ordinance, 1979 stands registered against the complainant party at the instance of said Mst. Mumtaz Bibi. Said assertion has not been refuted. I have further noticed that initially the complainant had alleged that four persons including Ghulam Yasin, Muhammad Iqbal and Fayyaz petitioners, had raped his wife namely Mst. Nazir turn by turn, on the date of occurrence. But, the medico legal certificate and the report of chemical examiner negated the prosecution version whereafter the offence under Section 10 of the Offence of Zina (Enforcement of Hudood) Ordinance, 1979 was deleted, however, the offence under Section 354-A, P.P.C. was added. Said fact, prima facie, indicates that the version of the victim qua allegation of rape was disbelieved by the investigating agency itself. In this background, one would take the version of the victim with a pinch of salt. As far as allegation regarding offence under Section 354-A, P.P.C. is concerned, it is the case of the petitioners that even if the contents of the F.I.R. are believed for the sake of arguments the same would not constitute the offence under Section 354-A, P.P.C., inasmuch as according to the prosecution itself the clothes of the victim were not stripped off in the public view and the said offence was committed after dragging the victim to a secluded place. Be that as it may, the question as to whether the offence under Section 354-A, P.P.C. was committed or it was simply a case of commission of offence under Section 354, P.P.C., would be requiring further inquiry. While holding so I am pinning my faith on the case of Muhammad Ashraf and 3 others v. The State (PLJ 1989 Cr.C. (Lahore) 419) wherein the word/term "public view" used in Section 354-A, P.P.C. was interpreted in an elaborate manner. I have further noticed that occurrence in this case allegedly took place on 14.11.2006 while statements of two ladies who were allegedly accompanying the victim at the time of occurrence were recorded on 29.11.2006 i.e. after 14 days of lodging of the F.I.R. The contents of the F.I.R., prima facie, indicate that the offence of stripping off the clothes of the victim was not seen by above-mentioned two ladies. I have further observed that large number of able-bodies men belonging to the same family have been roped in this case, prima facie, due to the background of the occurrence as narrated in the F.I.R. itself, therefore, possibility of false implication of the petitioners just to widen the net cannot be ruled out. It is established law that benefit of doubt can be granted to the accused even at bail stage. Even otherwise in case of grant of mistaken relief of bail the prosecution can be adequately compensated by convincing and sentencing the accused but innocent persons after undergoing unjustified pre-trial punishment cannot be adequately compensated in case of their acquittal, at the end of the day. Reliance in this regard is placed upon the case of Tariq Bashir and 5 others vs. The State (PLD 1995 SC 34).
7. To put into a nutshell the case of the petitioners require further inquiry under sub-section (2) of Section 497, Cr.P.C. into the guilt of the petitioners, to say the least. Besides, the petitioners are suffering pre-trial punishment since 19.11.2006, yet the charge has not been framed so far. Early conclusion of the trial is the right of every accused which in this case has been denied to the petitioners.
8. For what has been stated above the petitioners are found entitled to post-arrest bail. Resultantly, the application in hand is accepted and the petitioners are admitted to post arrest bail subject to their furnishing bail bonds in the sum of Rs. 1,00,000/- (rupees one lac) with one surety each in the like amount to the satisfaction of the learned trial Court.
(R.A.) Bail allowed.