2004 PLP 1822 (YLR)

Sardar Muhammad Latif Khan Khosa for the Complainant. Allah Ditta for the State. Abdul Karim alias Bannun son of Ghulam Farid‑petitioner has sought post arrest bail in case F.I.R. No.71, registered at Police Station Naushera Jaded, on 17‑3‑2003, for offences under sections 18/10(3) of the Offence of Zina (Enforcement of Hudood) Ordinance, 1979, read with sections 452/451/354, P.P.C.

2. The relevant facts as given in the F.I.R. are that on 4‑3‑2003 at about. 12‑00 (noon) Mst. Hasina Bibi‑complainant was alone in the house, as her husband and other inmates of the house had gone to work. Abdul Karim‑petitioner went to the house of the complainant and asked for complainant's husband. He was informed by the complainant that her husband was not available at the house. Thereafter Abdul Karim went inside the house. While another person, who was not known to the complainant (armed with pistol) stood at the door. Abdul Karim forcibly took the complainant in a room where he removed the trouser of the complainant and his own trouser and attempted to commit Zina‑bil -Jabr with the complainant. The complainant resisted the attempt and raised hue and cry, which attracted Muhammad Hashim and Muhammad Sajjad P.Ws. (neighbours) to the scene of occurrence. While the witnesses were approaching, the unidentified person asked Abdul Karim to run away. Meanwhile, the witnesses reached the scene of occurrence and tried to apprehend Abdul Karim. However, Abdul Karim and his accompanying accused succeeded in running away from the place of occurrence, after extending threats to the P.Ws. It was further alleged in the F.I.R. that after a short white the husband of the complainant also reached there. The complainant informed him about the incident and the matter was taken to a Punchayat and the petitioner confessed his guilt before the Punchayat. .But the matter was not reported to the police as the respectables of the village had been trying to patch up the matter. As the grievance of the complaint was not redressed, the matter was reported to the police.

3. The learned counsel for the petitioner has argued that the petitioner bas been roped in a false case and no such occurrence had taken place; that after registration of case the Investigating Officer had come to the conclusion that the petitioner had not attempted to commit Zina‑bil‑Jabr and deleted section 452, P.P.C. as well as section 18 of the Offence of Zina (Enforcement of Hudood) Ordinance, 1979, which were substituted by section 451, P.P.C.; that the matter was also investigated by the D.S.P. (Crimes), who opined that the offences under sections 451 and 354 were committed; that Muhammad Hashim, who has been cited as witness in this case, was inimical towards the petitioner and his other family, members; and that Muhammad Hashim P. W. was also cited as witness in the case F.I.R. No.222 of 2000 registered against the petitioner's uncle; and that the allegation qua the petitioner needs further probe and inquiry.

4. Conversely, the learned counsel for the complainant has vehemently opposed this application and has argued that the petitioner has committed a heinous crime; that it was the Court to determine as to what offence was made out; that the police officer, who had earlier investigated the case, had shown undue favour to the petitioner; that the petitioner was dare devil, who in broad‑daylight, trespassed into the house of the complainant and tried to molest her; that the delay has duly been explained in the F.I.R. itself; that the delay, even otherwise, does not matter much in such‑like cases; that the complainant has no grudge or enmity against the petitioner, so as to involve him in a false case; and that the offence being attempt to commit rape squarely falls within the prohibitory clause of section 497, Cr.P.C. In support of his arguments, the learned counsel has relied upon the case of Muhammad Siddique v. Imtiaz Begum and 2 others 2002 SCMR 442.

5. The learned counsel appearing on behalf of the State has adopted the line of arguments of the learned counsel for the complainant.

6. I have heard the learned counsel for the parties and gone through the record of the case minutely. It has been noticed that, though, according to F.I.R. husband of the complainant reached soon after the occurrence yet the matter was not reported to the police for 13 days; that during investigation the story of an unknown person, who was armed with pistol and was accompanying the petitioner, was found to be false; that the complainant claimed that she very strongly resisted the advances of the petitioner but there were no marks of resistance on her body or her clothes; and that during investigation the complainant produced the torn shirt before the Investigating Officer but the fact that her shirt was torn during the struggle was not mentioned in the F.I.R. A perusal of the relevant record reveals that indeed Muhammad Hashim, who has been cited as witness in this case, was also cited as witness in the case registered against the uncle of the petitioner. On the same set of facts the petitioner was admitted to pre arrest bail as the offences under sections 18/10(3) of the Offence of Zina (Enforcement of Hudood) Ordinance, 1979, and section 452, P.P.C. were deleted. In subsequent investigation section 18 of the Ordinance was restored and it was for that reason that the petitioner, who apprehended arrest, approached the learned trial Court and sought pre‑arrest bail, which was dismissed and he was arrested on 9‑12‑2003. It is true that the opinion of the police officers is not binding upon the Courts but it is also true that opinion of the police officers, who have investigated the case, is relevant for the purpose of grant or refusal of bail. The circumstances of the case cited by the learned counsel for the complainant do not apply to the facts of this case, as the said case mainly deals with the point when the review was permissible.

7. The upshot of the whole discussion is that I am of the opinion that the allegation against the petitioner qua section 18 of the Ordinance needs further probe and inquiry within the ambit of subsection (2) of section 497, Cr.P.C. As far as sections 451/452, P.P.C. are concerned, the same do not attract the mischief of the prohibitory clause of section 497, Cr.P.C. Thus I admit the petitioner to bail, subject to his tendering bail bonds in the sum of Rupees Fifty Thousand, with one surety, in the like amount, to the satisfaction of the trial Court. H.B.T./A‑79/L Bail granted.