1997 P Cr (PLP)

2 The case remained under investigation with different Investigating Officers. The statements of Abdullah father of Mst. Razia, Mst. Sharifan mother of Mst. Razia and Abdul Majeed guest of the house were recorded by the police under section 161, Cr.P.C. Both the accused led to the recovery of one pair of scissors. Last of all the case was investigated by Ch. Akbar Ali, D.S.P., Range Crimes, Bahawalpur who gave his opinion to the effect that his secret and open investigation had made out that Mst. Razia was a girl of bad reputation in whose house different persons visited and the accused also had the evil designs towards her. He added that the fact of cutting of tail of pig of Mst. Razia during the occurrence was found to be correct. He deleted the sections under section 11/19 of the Offence of Zina (Enforcement of Hudood) Ordinance, 1979 and directed the S.H.O. to submit the challan for the prosecution of the accused persons under section 354/506/4, P.P.C. The said opinion was approved by the superior Police Officer. Both Abdul Malik and Muhammad Ashiq filed the application for their admission to pre-arrest bail, which was dismissed on 15-6-1995 by the Additional Sessions Judge, Liaquat Pur who also gave the observation that the petitioner-accused are also liable under section 452, P.P.C. which is non-bailable.

3. In the meanwhile at one stage the F.I.R. was cancelled. After submission of the aforesaid last opinion of the D.S.P., Range Crimes, Bahawalpur the matter was reopened. Both the accused were arrested who were sent to judicial lock-up by the Ilaqa Magistrate at the request of the police. Since both section 354/506, P.P.C. are bailable both the accused were admitted to bail A in the, sum of Rs.20,000 each with one surety each in the like amount by the Ilaqa Magistrate on 18-6-1994.

4. Mst. Razia petitioner-victim filed this writ petition wherein she raised the objections against the working of the police who prayed for the proposed relief for proceeding against both Abdul Malik and Muhammad Ashiq and the unidentified person under section 458/506(2)/34, P.P.C. and under section 11/18 of the Offence of Zina (Enforcement of Hudood) Ordinance, 1979 and to arrest the accused persons. She also prayed that the knife and the hair cut from her head may also be got recovered.

5. She averred that the Additional Sessions Judge dismissed the application for pre-arrest bail moved by Abdul Malik and Muhammad Ashiq accused persons on 15-6-1995 by observing that they are also prima facie liable under section 452, P.P.C. who were arrested and were admitted to bail by the Area Magistrate on 18-6-1995 on the ground that they were liable for the commission of the bailable offence. She maintained that in the light of the statements of the P.Ws. the petitioners were liable under section 458/506(2)/34, P.P.C. and under section 11/18 of the Offence of Zina (Enforcement of Hudood) Ordinance, 1979.

6. I have heard the learned counsel for the parties and gone through the record before me. At the very outset I would express that it is not a case for the prima facie attraction of section 11/18 of the Offence of Zina (Enforcement of Hudood) Ordinance, 1979 as I do not agree with the learned counsel for the petitioner-complainant in this regard. The accused persons scaled over the wall and trespassed the house. They could not remove Mst. Razia out of the house. There was no grappling at the spot at the time of occurrence except that the cloth was allegedly put in her mouth and on her resistance her tail of pig, was cut by Abdul Malik respondent-accused. Hence agreeing with the learned counsel for the accused persons I hold that the proposed relief to this extent cannot be granted to Mst. Razia petitioner.

7. However, with respect to the remaining relief I am in full agreement with the learned counsel for the petitioner-complainant that a matter of alarming nature was taken lightly by the police. The statement of Mst. Razia complainant was recorded under section 161, Cr.P.C. on 12-10-1995. The statements of the two inmates namely her father Abdullah and her mother Sharifan were also recorded on 12-10-1994. The statement of Abdul Majeed was recorded by the police on 13-12-1994 even though he was mentioned as the P.W. in the F.I.R. Learned counsel for the accused persons has referred to the opinion of Ch. Ali Akbar, D.S.P., Range Crimes, Bahawalpur, according to which Mst. Razia was a girl of bad repute and that during the investigation only the allegation of cutting of the tail of pig was determined to be correct. He laid the emphasis-that the petitioners were prima facie liable under section 354/506, P.P.C. and the said sections being bailable they have rightly been admitted to bail against whom no further action is called for.

8. In the instant matter I have to simply express my surprise as to how the investigation was transferred frequently to different Investigating Officers. It has become a trend in the police that the investigations are transferred to and conduct by different Police Officers and then on personal whims and figment of brain of the concerned Investigating Officer the opinion is framed and expressed. After recording the statements of the aforesaid P.Ws. under section 161, Cr.P.C. there was no necessity on the part of Mr. Ali Akbar, D.S.P., Range Crimes, Bahawalpur to cross-examine them on 21-5-1995 who .should avoid such a mala fide working. He is a seasoned officer obviously in view of the rank being held by him. I am pained to express that he has neither acted in a just manner nor has given the correct opinion. He has mentioned in his opinion that the tail of pig of Mst. Razia was cut at the time of the occurrence. This I occurrence is alleged to have taken place within her house. Muhammad Ashiq and Abdul Malik trespassed the house of Mst. Razia r and her parents at mid night on the night falling between 7/8-10-1994''This being the position both Abdul Malik and Muhammad Ashiq are-also prima facie liable under section 457, P.P.C. for committing lurking house trespass by night in order to commit offence punishable with imprisonment. This aspect of the matter seems to have been ignored intentionally by, Ali Akbar, D.S.P., Range Crimes, Bahawalpur who had no jurisdiction to, give his opinion about the reputation of Mst. Razia as the said fact was not in issue and was not to be determined by him. He should avoid expressing such option in future in respect of any female in view of the enforcement of the Qazf (Enforcement of Hudood) Ordinance, 1979 who may be liable thereof. Thus, my view is that prima facie not only under section 354/506, P.P.C., both Abdul Malik and Muhammad Ashiq are also prima facie liable under sections 457/337(2)-V, Pakistan Penal Code.

9. At this stage I must express that an exception must be taken about the conduct of the Area Magistrate Police Station Shaidani Sharif, Liaquat Pur. It was on 15-6-1995 that the Additional Sessions Judge had expressed about the attraction of section 452, P.P.C. which is non-bailable and only on the basis of the report under section 173, Cr.P.C. the Area Magistrate admitted the accused persons to bail by holding that they are liable for the bailable offences. He should have made a perusal of the F.I.R., the report of the police under section 173, Cr.P.C. and the view expressed by the Additional Sessions Judge on 15-6-1995.

10. For what has been said above, I accept this writ petition and hold that the Constitutional right of Mst. Razia petitioner-complainant/victim stands infringed. I accept this petition and hold that prima facie both Muhammad Ashiq and Abdul Malik respondents are liable under section 457/507 (Part II)/354/ 337-V(2), Pakistan Penal Code. Section 457/506 (Part II), P.P.C. are non- bailable. They have been put under the custody of the S.H.O., Police Station Shaidani. Sharif with the direction to lodge them in the judicial lock-up Liaquat Pur, District Rahim Yar Khan who shall be produced before the Ilaqa Magistrate on 13-8-1995 and on every date to be fixed by him thereafter. The S.H.O., Police Station Shaidani Sharif is directed to submit the complete challan for the prosecution of Abdul Malik and:. Muhammad Ashiq accused persons under section 457/506 (Part II)/35,4/"337-V(2), Pakistan Penal Code within a period of 14 days before the Area Magistrate who shall proceed further in accordance with law for the purpose of holding the trial.

11. It is made clear that the trial Court shall not feel prejudiced by this order who may dispose of the bail application of the accused persons in accordance with law if moved by them and shall announce the final judgment on the basis of the evidence produced by the prosecution. N.H.Q./R-199/L Petition accepted