2014 P Cr (PLP)

ALI BAQAR NAJAFI, J.

Muhammad Imran petitioner seeks post-arrest bail in case F.I.R. No. 307 dated 30-12-2012 registered under sections 376/386, P.P.C. at Police Station Jauharabad Sadar, District Khushab.

2. The allegation against the petitioner is that according to the complainant she is a school teacher and was married to Masood Alam. About seven months ago, her husband after ten days of the marriage went to Italy and she starting living with her mother-in-law. After some days, her computer became out of order, upon which she called her distinctly related cousin, the petitioner, at her home, who removed the fault of the computer and went away. Two days after, he telephoned the complainant and informed that the entire data of the computer has been saved, which will be published in the internet and thereafter started blackmailing her. About three months ago, he called the complainant in his house to receive the computer data and at about Asr time, she went to the house of the petitioner where he took out a pistol, locked the door and committed Zina-bil-Jabr with her. He also took her nude photographs and threatened her not to disclose it to anybody, otherwise nude photographs will be displayed on the internet. While leaving the house of the petitioner, Sher Muhammad son of Muhammad Nawaz and Allah Ditta son of Muhammad Ramzan saw her. She kept quiet since the day of occurrence and waited for the return of her husband from Italy and upon his arrival, lodged the instant F.I.R.

3. The learned counsel for the petitioner submits that there is an unexplained delay of three months in lodging the F.I.R.; that only the cell phone data in the month of November, 2012 was made the basis for lodging the F.I.R.; that the complainant led to the recovery of computer; that as per the medico-legal examination, the complainant had sexual intercourse about five and a half months ago, which does not corroborate with the story narrated in the F.I.R.; places reliance upon the cases of Mst. Maria Khan v. The State and another [2013 SCMR 49], Abid Ali alias Ali v. The State [2011 SCMR 161], Ehsan Ullah v. The State [2012 SCMR 1137], Abid v. The State and others [2012 SCMR 647], Murtaza and another v. The State and another [2011 PCr.LJ 1619], Ali Hasnain Butt v. The State [2013 YLR 282], Mumtaz Imtiaz v. The State [2012 YLR 1110] and Rafiq Ahmad v. The State and another [2012 PCr.LJ 1321].

4. Conversely, the learned DPG, assisted by the learned counsel for the complainant, submits that the delay in lodging the F.I.R. is not attributed to the complainant as the same was lodged after the return of her husband; that the charge has been framed and the trial has commenced; that there are three P.Ws. but their statements have not been recorded on the adjournments of the Defence Counsel; section 386, P.P.C. attracts to this case, which entails ten years punishment; the cell phone data has been received, which shows that the petitioner was trying to blackmail the complainant. Reliance is placed upon the case of Khalil Yousuf and others v. The State [PLD 1995 Lahore 486] to argue that it is the nature of offence and not the quantum of punishment, which will be seen at the time of trial.

5. I have heard the learned counsel for the parties and perused the available record.

6. The occurrence is alleged somewhere in August, 2012, which was reported in December, 2012. Reasons for such a delay for an educated lady not less than a school teacher is not adequately explained as neither the consent of her husband was required nor he was a witness of the occurrence. The final opinion of the doctor shows that as per statement of the victim, she was subjected to sexual intercourse five and a half months ago but with an additional observation that she committed multiple intercourses after the return of her husband. The record does not show any recovery memo of the nude photograph. The data of the computer collected at the maximum establishes the threats of blackmailing without any demand for money or any kind. Another aspect of the matter is that two witnesses namely Sher Muhammad and Allah Ditta also kept mum for a period of three months. No mention of any date and time of the occurrence is given. This coupled with the fact that the complainant herself went to the house of the petitioner just to collect the data of the computer, which up till then was hardly of any value to the complainant, as according to her, the nude photographs were taken in the house of the petitioner on the day of occurrence.

7. At this stage, it will be appropriate to give a reference to the famous case of Mukhtaran Mai reported as The State and others v. Abdul Khaliq and others [PLD 2011 SC 554], wherein it has been observed that inferences drawn against the prosecution regarding delay in lodging the F.I.R. was against the settled law because in cases pertaining to gang-rape it was understandable that the victim or her family was/were hesitant to report the matter and in certain cases delay of even up to a month had not been considered fatal to the prosecution. In a case of an unmarried girl such delay is understandable, which situation could not be held at par with a grown-up married lady just to avoid Badnami which, of course, either way is a possible consequence. It was further observed as follows:-- "Violating the sanctity and chastity of a woman is a sordid, despicable, squalid act, which is considered abhorrent in any civilized society; any language falls short of vocabulary to condemn such heinous act and cases of this taxonomy must be strictly construed and dealt with. However, at the same time under criminal jurisprudence for the safe administration of criminal justice, the courts are required to follow certain settled principles, such as the innocence of the accused must be presumed, till he is proved to be guilty; sifting "the grain out of the chaff"; the defence may take a number of pleas and even if all are shown to be false, yet it is the duty of the prosecution to prove its case to the hilt; "better than ten guilty persons escape that that one innocent suffer."

8. Although the offence against the petitioner is heinous one yet mere heinousness could not be deemed to be a ground to debar the accused for grant of bail if the case is covered under section 497(2), Cr.P.C. In that eventuality, he is entitled to bail as of right and not by grace or concession. Mere commencement of the trial is no ground to refuse bail to an accused person, if made out otherwise. I hereby place my reliance on the cases of Mst. Maria Khan v. The State and another [2013 SCMR 49], Abid Ali alias Ali v. The State [2011 SCMR 161] and Ehsan Ullah v. The State [2012 SCMR 1137].

9. For the foregoing reasons, I am convinced that case of the petitioner falls within the ambit of further inquiry, as contemplated under section 497(2), Cr.P.C. into his guilt. I, therefore, allow this petition and admit the petitioner to bail subject to furnishing bail bond in the sum of Rs.2,00,000 (Rupees two hundred thousand only) with two sureties each of the like amount to the satisfaction of the trial Court. MH/M-122/L Bail allowed.