PLJ 2021 Cr.C. 1420
Criminal Procedure Code, 1898 (V of 1898)--
----S. 497(2)--Pakistan Penal Code, (XLV of 1860), Ss. 377 & 376-A--Post-arrest bail, grant of--Further inquiry--Allegation of--Kidnapped & carnal intercourse tentative assessment--Additionally, at time of Medico Legal Examination of victim of case, Doctor examining him also recorded brief history of occurrence as narrated by victim--While narrating brief history of occurrence to Medical Officer, victim did not name petitioner as an accused or that he had held victim by his hands at time of occurrence--There was no reason for victim himself not to have named petitioner as an accused while narrating said history of occurrence to Medical Officer--This, prima facie makes case against petitioner one of further inquiry and probe which can only be undertaken by trial Court--It would be trial Court which would be in a better position to determine as to whether co-accused of petitioner needed any help of petitioner for committing crime--Vicarious liability of petitioner for offences alleged shall be better determined by trial Court--Mere involvement in a heinous offence is no ground for refusing bail to an accused who otherwise becomes entitled for concession of bail--Petitioner is a previous non-convict--Investigation qua him is complete and his person is no more required for further investigation, therefore, his continued incarceration would not serve any beneficial purpose at this stage--Petitioner was arrested and since then is behind bars--Case of petitioner becomes one of further inquiry covered by subsection (2) of Section 497, Cr.P.C--Liability of petitioner for said offences would be determined by trial Court after sifting evidentiary worth of material produced before same--Till then, case of petitioner would be within domain of Section 497(2), Cr.P.C. calling for further inquiry into petitioner’s guilt--Bail was allowed. [Pp. 1422 & 1423] A & B
Mr. Ashfaq Ahmed Baluch, Advocate for Petitioner.
Mr. Tariq Mahmood Dogar, Advocate for Complainant/ Respondent No. 2.
Mr. Hassan Mehmood Khan Tareen, Deputy Prosecutor General for State.
Date of hearing: 24.3.2021.
PLJ 2021 Cr.C. 1420
[Lahore High Court, Multan Bench]
Present: Sadiq Mahmud Khurram, J.
NOOR SHAH--Petitioner
versus
STATE and another--Respondents
Crl. Misc. No. 1513-B of 2021, decided on 24.3.2021.
Order
Through this petition filed under Section 497 Cr.P.C., the petitioner namely Noor Shah seeks post-arrest bail in the case FIR No. 10 of 2021, dated 22.01.2021, registered at Police Station Retra, District Dera Ghazi Khan, in respect of offences under Sections 377 and 367-A, PPC.
2. The allegation as against the petitioner namely Noor Shah, culled from the evidentiary material produced before the Court, is that he and Hafiz Muhammad Fakhar, his co-accused, kidnapped Muhammad Riaz, the son of the complainant and thereafter Hafiz Muhammad Fakhar, the co-accused of the petitioner had carnal intercourse against the order of nature with Muhammad Riaz, son of the complainant of the FIR.
3. I have heard the learned counsel for the petitioner, the learned Deputy Prosecutor General, the learned counsel for the complainant at length and perused the record with their able assistance.
4. This is a bail after arrest and only tentative assessment is permissible at this stage. There is no allegation against the petitioner that he had carnal intercourse against the order of nature with Muhammad Riaz, son of the complainant of the FIR. The allegation with regard to having carnal intercourse against the order of nature with Muhammad Riaz, son of the complainant of the FIR has been levelled against Ilafiz Muhammad Fakhar, the co-accused of the petitioner. Though, it has been stated in the FIR that while Hafiz Muhammad Fakhar, the co-accused of the petitioner was having carnal intercourse against the order of nature with Muhammad Riaz, the petitioner held the victim by his hands, however, when Muhammad Riaz was examined by the Medical Officer, the Medical Officer did not observe any bruises or any other mark of injury on the hands of Muhammad Riaz. Additionally, at the time of Medico Legal Examination of Muhammad Riaz, the victim of the case, the Doctor examining him also recorded the brief history of the occurrence as narrated by Muhammad Riaz. While narrating the brief history of the occurrence to the Medical Officer, Muhammad Riaz did not name the petitioner as an accused or that he had held the victim by his hands at the time of occurrence. There was no reason for Muhammad Riaz himself not to have named the petitioner as an accused while narrating the said history of the occurrence to the Medical Officer. This, prima facie makes the case against the petitioner one of further inquiry and probe which can only be undertaken by the trial Court. It would be the learned trial Court which would be in a better position to determine as to whether Hafiz Muhammad Fakhar, the co-accused of the petitioner needed any help of the petitioner for committing the crime. The vicarious liability of the petitioner for the offences alleged shall be better determined by the learned trial Court. Mere involvement in a heinous offence is no ground for refusing bail to an accused who otherwise becomes entitled for the concession of bail. The petitioner is a previous non-convict. The investigation qua him is complete and his person is no more required for further investigation, therefore, his continued incarceration would not serve any beneficial purpose at this
stage. The petitioner was arrested on 01.02.2021 and since then is behind the bars.
5. For what has been discussed above, the case of the petitioner becomes one of further inquiry covered by subsection (2) of Section 497, Cr.P.C. Liability of petitioner for the said offences would be determined by the learned trial Court after sifting the evidentiary worth of the material produced before the same. Till then, case of the petitioner would be within the domain of Section 497(2), Cr.P.C. calling for further inquiry into the petitioner’s guilt. The petition in hand is accepted and the petitioner is admitted to post-arrest bail subject to his furnishing bail bonds in the sum of Rs. 500,000/- (rupees five hundred thousand only) with two sureties each, in the like amount, to the satisfaction of learned trial Court.
6. Needless to mention that any observations made in the above order are tentative in nature and shall not influence the trial Court. Additionally, a direction is issued to the learned trial Court to conclude the trial of the case expeditiously, preferably within a period of three months from the receipt of copy of this order. It is made clear that if the petitioner or any person acting on his behalf causes delay in the conclusion of the trial then the trial Court shall be at liberty to cancel the bail of the petitioner in accordance with the law. If the petitioner absents himself from the learned trial Court, the learned trial Court would be at liberty to cancel his bail, in accordance with the law. If the petitioner misuses the concession of bail in any manner the learned trial Court would also be at liberty to cancel his bail, in accordance with the law.
(A.A.K.) Bail allowed
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