2006 PLP 3065 (YLR)

IJAZ AHMAD CHAUDHRY, J.--Through this petition under section 497, Cr.P.C., the petitioner seeks bail after arrest in case F.I.R. No.220, dated 24-5-2005, registered under sections 459/ 458/337-H(ii), P.P.C. read with section

18. Offence of Zina (Enforcement of Hudood) Ordinance VII of 1979 at Police Station Sadar District Sargodha on the application of Rana Shaukat.

2. The brief allegation against the petitioner is that he while armed with pistol committed lurking house trespass, made effort to commit Zina with daughter of the complainant at pistol point and when the complainant resisted, the accused/petitioner made fire shot on the person of the complainant - who luckily escaped.

3. The learned counsel for the petitioner contends that section 18, Offence of Zina (Enforcement of Hudood) Ordinance VII of 1979 has been deleted during the investigation and section 459 is not made out. It is further contended that nobody had entered during the investigation and without incorporating any reason section 458, Cr.P.C. has been added by the police whereas no such occurrence had taken place and the petitioner has been falsely implicated in the present case. It is next contended that Muhammad Idrees has also sworn as affidavit in favour of the petitioner that no such occurrence had taken place and the petitioner is innocent. Relies upon 1994 SCMR 2060. It is also contended that the petitioner is behind the bars for the last about six months.

4. On the other hand learned counsel for the State opposes this petition on the ground that the petitioner is named in the F.I.R. with specific role that he had caught hold of daughter of the complainant and recovery of pistol has been effected from his possession that victim has also got recorded her statement under section 161, Cr.P.C. in which she has supported the story narrated by her father.

5. I have heard the learned counsel for the parties and perused the record with due care and caution.

6. The petitioner is named in the F.I.R. and as per allegation against him he had entered into the house of the complainant namely Rana Shaukat Ali at the midnight of 23/24-5-2005. The allegation is further supported by the statement of the victim Mst. Shaida Kanwal that an attempt to commit Zina with her was made by the petitioner at the said time. Moreover, the witnesses in their statements recorded under section 161, Cr.P.C. have also supported the allegation against the petitioner. Admittedly, there is no direct enmity, grudge or ill-will between the petitioner and the complainant for false implication of the petitioner in the present case.

7. As far as the contention of the learned counsel for the petitioner that section 18, Offence of Zina (Enforcement of Hudood) Ordinance, VII of 1979 has been deleted by the police is concerned, it is trite that finding of the police is not binding on the Courts and after perusal of the record it is found that the victim has supported the allegation of attempt to commit Zina by the petitioner with her., The petitioner was arrested on 11-7-2005, who also produced the witnesses in support of his defence and in his first statement before the police which can be considered at the time of grant or refusal of bail to an accused has admitted that Mst. Shahida Kanwal had illicit liaison with him, she called her in her house by writing a letter to him and he was seen in the house of the complainant etc. and wife of the complainant also gave Danda blow but he succeeded in running away. In this defence the witnesses have appeared and stated that daughter of the complainant was not of good character and the petitioner had "Hello Hello" and she had called her in her house and other members of the family woke up but the petitioner succeeded in running away from the spot. In the presence of the evidence collected during the investigation by the police, I don't find deletion of section 18, Offence of Zina (Enforcement of Hudood) Ordinance, VII of 1979 by the police as correct as police finding of the police is not binding on the Courts. Even otherwise, there is sufficient evidence on the record to connect the petitioner with the commission of the crime. Moreover, the petitioner has committed the heinous offence by entering into the house of the complainant at midnight time. Hence, this petition having no merits is dismissed. H.B.T./A-149/L Bail refused.