2010 P Cr. L J 1455
Criminal Procedure Code (V of 1898)---
----S. 498---Penal Code (XLV of 1860), S. 365-B/376/420/468/471---Abduction, rape,cheating,forgery, using as genuine a forged document---Pre-arrest bail,refusal of---Investigating Officer had dishonestly declared the accused innocent during investigation---Accused were specifically nominated in the F.I.R. with the role of committing zina with the adducted complainant and forging the Nikahnama---Genuineness or falsity of Nikahnama would be determined by Family Court---Evidence could not be appreciated deeply at bail stage---Victim lady in her statement had specifically implicated the accused for commission of zina with her---Offence was heinous and fell within the prohibitory clause of section 497(1), Cr.P.C.---Accused did not deserve any discretionary relief---Pre-arrest bail was disallowed to accused accordingly.
Saddar Din v. Deputy Inspector-General City Police, Lahore and 6 others PLD 2009 Lah. 585; Bahadur Khan v. Muhammad Azam and 2 others 2006 SCMR 373 and Murad Khan v. Fazal-e-Subhan and another PLD 1983 SC 82 ref.
Malik Shahzad Farid Langrial for Appellant.
Mian Ahmed Mehmood for the Complainant.
Rana Kashif Salim Arfa, Law Officer with Muhammad Ashiq, S.-I. and Rab Nawaz, S.-I. for the State.
MUHAMMAD FAISAL VS State2010 P Cr. L J 1455[Lahore]Before Hafiz Abdul Rehman Ansari, JMUHAMMAD FAISAL and another-PetitionersVersusTHE STATE and another---RespondentsCriminal Miscellaneous No. 181-B of 2010, decided on 09/02/2010.
ORDER
HAFIZ ABDUL REHMAN ANSARI, J.---The petitioners through this bail petition filed under section 498, Cr.P.C. seek pre-arrest bail in case F.I.R. No.390 of 2009 dated 15-9-2009 registered under sections 420,468,471, P.P.C., added later on by the police which was initially got registered under sections 376(1), 365-B, P.P.C. with Police Station, Sarwar Shaheed District Muzaffargarh.
2. The petitioners bail before arrest was dismissed by the learned Additional Sessions Judge-I, Kot Addu on 13-1-2010.
3. Allegation against the petitioners according to the F.I.R. is that on the night between 29/30-7-2009 the complainant was sleeping in the house of her parents situated in Chak No.584/TDA at about 2/3-00 a.m. (night) the petitioners along with others armed with deadly weapons entered into the house of the complainant and threatened that if anybody tried to make a noise they will be killed and abducted the complainant.
4. Learned counsel for the petitioner contends that occurrence took place on 29/30-7-2009 and F.I.R. was got registered on 15-9-2009 after unexplained delay of about 1-1/2 months. Initially the case was got registered under sections 365-B and 376(i), P.P.C. in the investigation the petitioners were declared innocent and report under section 173, Cr.P.C. was submitted before the learned trial court in which only Azhar Mehmood was challaned while the name of the petitioners were placed in Column No.2 of the challan. On 17-11-2009 the learned Judicial Magistrate sent the case to the learned Additional Sessions Judge, Kot Addu on 23-11-2009. The learned Additional Sessions Judge Kot Addu summoned the petitioners and demanded bail bonds in the sum of Rs.30,000 and the petitioners appeared on 11-12-2009 on the first date of hearing of the case; charge was framed on 21-12-2009, the petitioners did not plead guilty. Learned counsel submits that subsequently Writ Petition No.8733 of 2009 was filed in this court. In the said writ petition my learned brother Tariq Javaid, J. issued direction to DPO to look into the matter about the allegations of the complainant; as a consequence of further probe and inquiry into the facts of the case sections 468, 471, P.P.C. were added in the F.I.R. No.390 of 2009, after addition of new sections under the Pakistan Penal Code in the F.I:R. the police was after the arrest of the petitioners so they moved petition for pre- arrest bail before the learned Additional Sessions Judge, Kot Addu who declined the same on 13-1-2010.
5. Learned counsel for the petitioners submitted that there is no evidence on record that the petitioner fabricated and forged the nikahnama which is sub judice before the Judge Family Court in family suit for jactitation of marriage filed by alleged victim girl and another suit for conjugal rights filed by Azhar Mehmood, alleged husband of Mst. Robina. Learned counsel submitted that earlier petitioners were found innocent and challan was submitted only against Azhar Mehmood before the learned trial court. Learned counsel further submitted that the victim filed a petition before the learned Additional Sessions Judge where she stated that she married with Azhar Mehmood with her own free will and conscience and the said statement was affixed the thumb mark of the victim lady also. It is no where stated in the petition what was the age of the alleged victim lady. The woman stated before the Medical Officer that she is 13/14 years of age. Learned counsel submits that nothing is to be recovered from the petitioners. It would not fulfil any useful purpose sending the petitioners behind the bars.
6. On the other hand learned Law Officer along with the learned counsel for the complainant forcefully opposed the bail petition contending that the conduct of the petitioners is so objectionable that they do not deserve the discretionary relief for grant of pre-arrest bail. Learned counsel pointed out that very important contents of the original F.I.R. are deleted in the better copy annexed with bail petition. On this sole ground the bail petition should be dismissed. He further contended that petitioners are nominated in the F.I.R. along with Azhar Mehmood they forcibly took with them victim lady who is hardly 12/13 years of age. She was taken away to Sargodha where it is specifically mentioned in the F.I.R. along with Azhar Mehmood petitioner also committed zina with her. Learned Law Officer submitted that Investigating Officer of this case made dishonest investigation and declared the present petitioners innocent without any cogent reasons. The victim lady in her statement under section 161, Cr,P.C. has specifically implicated the present petitioners committing zina with her. Learned counsel submitted that the petitioners along with Azhar Mehmood forged and fabricated the nikahnama. The victim lady has specifically denied her marriage with Azhar Mehmood. Learned counsel further submitted that even if the report under section 173, Cr.P.C. is submitted even then the case can be reinvestigated. He made reliance on "Saddar Din v. Deputy Inspector-General City Police, Lahore and 6 others" (PLD 2009 Lahore 585), "Bahadur Khan v. Muhammad Azam and 2 others" 2006 SCMR 373. He supported the addition of sections 420, 468, 471 subsequently added in the F.I.R. by the police.
7. I have heard the learned counsel for the parties and perused the record.
8. From the police file it transpires that the Investigating Officer made dishonest investigation of the case; the tender age girl was raped not only by Azhar Mehmood by the present petitioners also. The petitioners are specifically nominated in the F.I.R. with specific role of committing zina with the abducted lady for which the accused later on forged the nikahnama. Nikahnama is genuine or forged it will be adjudicated by the Judge Family Court. Deeper appreciation of evidence cannot be made at this stage while deciding the bail. The victim lady in her statement has specifically implicated the present petitioner and Azhar Mehmood for commission of zina with her. The offence falls within the prohibitory clause. The learned counsel for the petitioner could not point out any prerequisite for grant of pre-arrest bail in the light of dictum laid down in "Murad Khan v. Fazai-e-Subhan and another" (PLD 1983 SC 82). The offence committed by the petitioner is of heinous in nature. The petitioners do not deserve any discretionary relief.
9. In the light of above discussion this bail petition is dismissed. Anyhow, any observation made in this order is of tentative in nature it will not prejudice the case of either side. However, District Police Officer, Muzaffargarh is directed to initiate proceedings against the Investigating Officer of this case who made the dishonest investigation illegally and without cogent reasons declared the accused innocent. District Police Officer will inform this court for his action against the delinquent Investigating Officer through Deputy Registrar (Judi.) of this court.
N.H.Q./M-168/LBail refused.
Criminal Procedure Code (V of 1898)---
----S. 498---Penal Code (XLV of 1860), S. 365-B/376/420/468/471---Abduction, rape,cheating,forgery, using as genuine a forged document---Pre-arrest bail,refusal of---Investigating Officer had dishonestly declared the accused innocent during investigation---Accused were specifically nominated in the F.I.R. with the role of committing zina with the adducted complainant and forging the Nikahnama---Genuineness or falsity of Nikahnama would be determined by Family Court---Evidence could not be appreciated deeply at bail stage---Victim lady in her statement had specifically implicated the accused for commission of zina with her---Offence was heinous and fell within the prohibitory clause of section 497(1), Cr.P.C.---Accused did not deserve any discretionary relief---Pre-arrest bail was disallowed to accused accordingly.
Saddar Din v. Deputy Inspector-General City Police, Lahore and 6 others PLD 2009 Lah. 585; Bahadur Khan v. Muhammad Azam and 2 others 2006 SCMR 373 and Murad Khan v. Fazal-e-Subhan and another PLD 1983 SC 82 ref.
Malik Shahzad Farid Langrial for Appellant.
Mian Ahmed Mehmood for the Complainant.
Rana Kashif Salim Arfa, Law Officer with Muhammad Ashiq, S.-I. and Rab Nawaz, S.-I. for the State.
ORDER
HAFIZ ABDUL REHMAN ANSARI, J.---The petitioners through this bail petition filed under section 498, Cr.P.C. seek pre-arrest bail in case F.I.R. No.390 of 2009 dated 15-9-2009 registered under sections 420,468,471, P.P.C., added later on by the police which was initially got registered under sections 376(1), 365-B, P.P.C. with Police Station, Sarwar Shaheed District Muzaffargarh.
2. The petitioners bail before arrest was dismissed by the learned Additional Sessions Judge-I, Kot Addu on 13-1-2010.
3. Allegation against the petitioners according to the F.I.R. is that on the night between 29/30-7-2009 the complainant was sleeping in the house of her parents situated in Chak No.584/TDA at about 2/3-00 a.m. (night) the petitioners along with others armed with deadly weapons entered into the house of the complainant and threatened that if anybody tried to make a noise they will be killed and abducted the complainant.
4. Learned counsel for the petitioner contends that occurrence took place on 29/30-7-2009 and F.I.R. was got registered on 15-9-2009 after unexplained delay of about 1-1/2 months. Initially the case was got registered under sections 365-B and 376(i), P.P.C. in the investigation the petitioners were declared innocent and report under section 173, Cr.P.C. was submitted before the learned trial court in which only Azhar Mehmood was challaned while the name of the petitioners were placed in Column No.2 of the challan. On 17-11-2009 the learned Judicial Magistrate sent the case to the learned Additional Sessions Judge, Kot Addu on 23-11-2009. The learned Additional Sessions Judge Kot Addu summoned the petitioners and demanded bail bonds in the sum of Rs.30,000 and the petitioners appeared on 11-12-2009 on the first date of hearing of the case; charge was framed on 21-12-2009, the petitioners did not plead guilty. Learned counsel submits that subsequently Writ Petition No.8733 of 2009 was filed in this court. In the said writ petition my learned brother Tariq Javaid, J. issued direction to DPO to look into the matter about the allegations of the complainant; as a consequence of further probe and inquiry into the facts of the case sections 468, 471, P.P.C. were added in the F.I.R. No.390 of 2009, after addition of new sections under the Pakistan Penal Code in the F.I:R. the police was after the arrest of the petitioners so they moved petition for pre- arrest bail before the learned Additional Sessions Judge, Kot Addu who declined the same on 13-1-2010.
5. Learned counsel for the petitioners submitted that there is no evidence on record that the petitioner fabricated and forged the nikahnama which is sub judice before the Judge Family Court in family suit for jactitation of marriage filed by alleged victim girl and another suit for conjugal rights filed by Azhar Mehmood, alleged husband of Mst. Robina. Learned counsel submitted that earlier petitioners were found innocent and challan was submitted only against Azhar Mehmood before the learned trial court. Learned counsel further submitted that the victim filed a petition before the learned Additional Sessions Judge where she stated that she married with Azhar Mehmood with her own free will and conscience and the said statement was affixed the thumb mark of the victim lady also. It is no where stated in the petition what was the age of the alleged victim lady. The woman stated before the Medical Officer that she is 13/14 years of age. Learned counsel submits that nothing is to be recovered from the petitioners. It would not fulfil any useful purpose sending the petitioners behind the bars.
6. On the other hand learned Law Officer along with the learned counsel for the complainant forcefully opposed the bail petition contending that the conduct of the petitioners is so objectionable that they do not deserve the discretionary relief for grant of pre-arrest bail. Learned counsel pointed out that very important contents of the original F.I.R. are deleted in the better copy annexed with bail petition. On this sole ground the bail petition should be dismissed. He further contended that petitioners are nominated in the F.I.R. along with Azhar Mehmood they forcibly took with them victim lady who is hardly 12/13 years of age. She was taken away to Sargodha where it is specifically mentioned in the F.I.R. along with Azhar Mehmood petitioner also committed zina with her. Learned Law Officer submitted that Investigating Officer of this case made dishonest investigation and declared the present petitioners innocent without any cogent reasons. The victim lady in her statement under section 161, Cr,P.C. has specifically implicated the present petitioners committing zina with her. Learned counsel submitted that the petitioners along with Azhar Mehmood forged and fabricated the nikahnama. The victim lady has specifically denied her marriage with Azhar Mehmood. Learned counsel further submitted that even if the report under section 173, Cr.P.C. is submitted even then the case can be reinvestigated. He made reliance on "Saddar Din v. Deputy Inspector-General City Police, Lahore and 6 others" (PLD 2009 Lahore 585), "Bahadur Khan v. Muhammad Azam and 2 others" 2006 SCMR 373. He supported the addition of sections 420, 468, 471 subsequently added in the F.I.R. by the police.
7. I have heard the learned counsel for the parties and perused the record.
8. From the police file it transpires that the Investigating Officer made dishonest investigation of the case; the tender age girl was raped not only by Azhar Mehmood by the present petitioners also. The petitioners are specifically nominated in the F.I.R. with specific role of committing zina with the abducted lady for which the accused later on forged the nikahnama. Nikahnama is genuine or forged it will be adjudicated by the Judge Family Court. Deeper appreciation of evidence cannot be made at this stage while deciding the bail. The victim lady in her statement has specifically implicated the present petitioner and Azhar Mehmood for commission of zina with her. The offence falls within the prohibitory clause. The learned counsel for the petitioner could not point out any prerequisite for grant of pre-arrest bail in the light of dictum laid down in "Murad Khan v. Fazai-e-Subhan and another" (PLD 1983 SC 82). The offence committed by the petitioner is of heinous in nature. The petitioners do not deserve any discretionary relief.
9. In the light of above discussion this bail petition is dismissed. Anyhow, any observation made in this order is of tentative in nature it will not prejudice the case of either side. However, District Police Officer, Muzaffargarh is directed to initiate proceedings against the Investigating Officer of this case who made the dishonest investigation illegally and without cogent reasons declared the accused innocent. District Police Officer will inform this court for his action against the delinquent Investigating Officer through Deputy Registrar (Judi.) of this court.
N.H.Q./M-168/LBail refused.
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