PLJ 2022 Cr.C. 1480
Pakistan Penal Code, 1860 (XLV of 1860)--
----S. 496-A--Offence u/S. 496-A, PPC prescribes sentence of seven years, thus not falls within ambit of prohibitory clause--Offence u/S. 496-A, PPC prescribes sentence of seven years--The Courts, in such like cases where an offence falls within non-prohibitory clause, consider favourably by granting bail as a rule but decline to do so in exceptional cases--As far as exceptional circumstances are concerned those are to be taken into consideration depending upon each case. [P. 1482] A
PLD 2017 SC 733.
Criminal Procedure Code, 1898 (V of 1898)--
----S. 497--Pakistan Penal Code, (XLV of 1860), S. 496-A--Post-arrest bail, grant of--Allegation of--Abducted women for purpose of committing zina--Prima facie, prosecution has no sufficient incriminating material to connect petitioner with commission of alleged offence and same definitely leaves room for further inquiry into guilt of petitioner--Petitioner has been falsely implicated in this case--Similarly, conduct of complainant with respect to tendering affidavit in favour of Sadaqat Ali co-accused, has also made case of prosecution of doubtful in nature--Petitioner is behind bars since his arrest and is no more required for further investigation and concession of bail could not be withheld by way of premature punishment. [Pp. 1483 & 1484] B, C & D
2012 SCMR 1137, 2014 SCMR 1347, 2019 SCMR 1458,
2020 SCMR 417, 2021 SCMR 2011 & 2019 SCMR 1914.
Malik Muhammad Sajid Feroze, Advocate for Petitioner
Mr. Javed Iqbal Bahyaa, ADPP for State.
Syed Ghulam Shabbir, Advocate for Complainant.
Date of hearing: 3.1.2022.
PLJ 2022 Cr.C. 1480
[Lahore High Court, Bahawalpur Bench]
Present: Muhammad Tariq Nadeem, J.
AYAZ AHMAD--Petitioner
versus
STATE and another--Respondents
Crl. Misc. No. 4626-B of 2021, decided on 3.1.2022.
Order
Through the captioned bail application, petitioner Ayaz Ahmad entreats post-arrest bail in a case F.I.R. No. 96/2021 dated 11.03.2021 under Section 496-A, P.P.C., registered at Police Station Kotsamaba, District Rahim Yar Khan.
2. As per gravamen, in brief, mentioned in the F.I.R, on 26.02.2021 at Magrab time, petitioner along with his co-accused abducted Mst. Zohra Bibi, daughter-in-law of the complainant in a carry van for the purpose of committing Zina with her, hence this FIR.
3. Contentions heard and file gone through.
4. After going through the narration of FIR and the evidentiary material collected by the police and presented before this Court, it divulges that there is a delay of 14 days in registration of FIR and no exegesis has been given by the complainant with respect to this delay, which indicates that FIR has been lodged with due deliberation and consultation.
5. A close look of the FIR clearly demonstrates that complainant was away from his home in connection with some personal affair and when he returned back at his home, he found his daughter-in-law Mst. Zohra Bibi missing which fact elucidates that complainant himself is not the eye-witness of the incident in issue but he learnt about the occurrence from two other witnesses mentioned in the FIR namely Muhammad Asghar and Muhammad Amin who were present at the scene of crime.
6. Learned counsel for the complainant has invited this Court’s attention towards case of Sadaqat Ali co-accused, to whom similar role was attributed, but his after arrest bail application bearing Crl. Misc. No. 1348-B of 2021 was dismissed by this Court as having been withdrawn at the very outset vide Order dated 27.05.2021 and submitted that petitioner is not entitled for the concession of bail. However, while controverting the arguments advanced by the learned counsel for the complainant, learned counsel for the petitioner has submitted that discharge report of supra mentioned co-accused was prepared, which has been annexed with this petition as (Mark-F) depicts that on 28.05.2021, the discharge report of Sadaqat Ali co-accused was accepted and during the course of investigation, complainant of this case duly sworn an affidavit to the effect that Sadaqat Ali co-accused was not involved in this case. In the light of above mentioned circs, in my humble view the case of the petitioner has become one of further inquiry on this score.
7. Learned Law Officer assisted by learned counsel for the complainant has also argued with vehemence that star prosecution witness/alleged abductee Mst. Zohra Bibi has yet not been recovered and for the reason, petitioner is not entitled for the concession of bail. I am not in agreement with this argument because no useful purpose would be served by keeping the petitioner in captivity till the recovery of alleged abductee. Reliance is placed upon the case law titled as “Ghulam Ali v. The State” (1989 P Cr.L J 667).
8. The offence under Section 496-A, PPC prescribes sentence of seven years. The Courts, in such like cases where an offence falls within the non-prohibitory clause, consider favourably by granting bail as a rule but decline to do so in the exceptional cases. As far as exceptional circumstances are concerned those are to be taken into consideration depending upon each case. No exceptional ground has been pointed out by learned ADPP assisted by learned counsel for the complainant to refuse bail to the petitioner. A reference in this respect may be made to the case of Muhammad Tanveer vs The State (PLD 2017 SC 733) wherein it was observed as infra:
“Once this Court has held in categorical terms that grant of bail in offences not falling within the prohibitory limb of section 497, Cr.P.C. shall be a rule and refusal shall be an exception, then the Courts of the country should follow this principle in its letter and spirit because principles of law enunciated by this Court are constitutionally binding [under Article 189] on all Courts throughout the country including the Special Tribunals and Special Courts”
Reliance can also be placed upon the case laws titled as “Tariq Bashir and 5 others v. The State” (PLD 1995 SC 34) and Ramzan alias Jani vs. The State” (2020 SCMR 717).
9. Prima facie, prosecution has no sufficient incriminating material to connect the petitioner with the commission of alleged offence and the same definitely leaves room for further inquiry into the guilt of the petitioner. I am guided by the case laws titled as “Ehsan Ullah vs. The State” (2012 SCMR 1137). “Muhammad Iran vs. The State and others” (2014 SCMR 1347), “Saif Ullah vs. The State and others” (2019 SCMR 1458) and “Zulfiqar v. The State” (2020 SCMR 417).
10. I have noted that from the facts and circumstances of the instant case, possibility cannot be ruled out that the petitioner has been falsely implicated in this case. Similarly, conduct of complainant with respect to tendering affidavit in favour of Sadaqat Ali co-accused, has also made the case of prosecution of doubtful in nature. In a recent pronouncement of apex Court of the country in case titled as Resham Khan and another vs. The State through Prosecutor General Punjab, Lahore and another (2021 SCMR 2011) has held that while granting post arrest bail even the benefit of doubt can be extended to the accused. The relevant portion of the supra mentioned judgment is reproduced hereunder:
“….The insight and astuteness of further inquiry is a question which must have some nexus with the result of the case for which a tentative assessment of the material on record is to be considered for reaching just conclusion. The case of further inquiry pre-supposes the tentative assessment which may create doubt with respect to the involvement of accused in the crime. It is well settled that object of trial is to make an accused to face the trial and not to punish an under trial
prisoner. The basic idea is to enable the accused to answer criminal prosecution against him rather than to rot him behind the bar. Every accused is innocent until his guilt is proved and benefit of doubt can be extended to the accused even at bail stage if the facts of the case so warrant. The basic philosophy of criminal jurisprudence is that the prosecution has to prove its case beyond reasonable doubt and this principle applies at all stages including pre-trail and even at the time of deciding whether accused is entitled to bail or not. ….
11. The petitioner is behind the bars since his arrest and is no more required for further investigation and concession of bail could not be withheld by way of premature punishment. Reliance is placed upon the cases titled as “Husnain Mustafa v. The State and another” (2019 SCMR 1914).
12. In the light of supra mentioned discussion, this petition is accepted and the petitioner is allowed post-arrest bail subject to his furnishing bail bonds in the sum of Rs. 1,00,000/-with one surety in the like amount to the satisfaction of the learned trial Court.
13. It is, however, clarified that the observations made hereinabove are tentative in nature, and strictly confined to the disposal of this bail petition.
(A.A.K.) Bail accepted
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