2019 PLP 719 (YLR)

ALI BAIG, J.

Through the instant bail petition the petitioner/accused namely Muzasffar son of Shah Alam seeks post arrest bail in case FIR No.56 of 2017 dated 24-02-2017 registered under sections 354, 341, 509, 376/511, P.P.C. at Police Station Airport Gilgit.

2. Prior to that the petitioner/ accused had filed bail application in the court of the learned Addl. Sessions Judge Gilgit which was dismissed by the learned trial court vide bail order dated 14-6-2018, hence this petition.

3. Briefly prosecution story as unfolded in the FIR is that on 24-7-2017 at 1500 hours real sister of complainant Mst. Hrah Kiran was returning to her house from the house of her maternal uncle situated at Sonikot Paen. In the meanwhile the accused/petitioner appeared there and caught hold the hands of victim and assaulted the victim with intent to outrage her modesty. On raising hue and cry by the alleged victim neighbors namely Saleh son Sher Baz and Didar Ali son of Wazir Baig attracted and reached at the place of occurrence. Seeing them the petitioner/ accused escaped from the place of occurrence.

4. The learned counsel appearing on behalf of the petitioner/accused contended that petitioner /accused is innocent and complainant has falsely been implicated the petitioner/ accused in this case. The learned counsel for the petitioner /accused further argued that sections 509, 354 and 341, P.P.C. are reflected in the FIR which are bail able and sections 376 and 511, P.P.C. were inserted later on in the challan which do not attract to the case of the petitioner /accused, hence the petitioner is entitled for concession of bail. The learned counsel for the petitioner/accused further argued that name of the petitioner/accused has not been disclosed in the FIR and identification period was not conducted by the prosecution. In support of his contentions the learned counsel for the petitioner/accused has relied upon the following case laws:-- (i) 2017 PCr.LJ 561, (ii) 2009 PCr.LJ 153, 1999 MLD 1300, (iii) 2003 YLR 2547.

5. Conversely, the learned Deputy Advocate General vehemently opposed this petition by contending that accused /petitioner is directly charged in the promptly lodged FIR and specific role has been attributed to the accused/petitioner. The learned Deputy Advocate General further argued that occurrence was taken place on 24-7-2017 and after commission of offence the petitioner/accused had absconded and he was arrested on 05.3.2018, hence this petitioner is not entitled for concession of bail.

6. I have given my anxious consideration to the arguments advanced by the learned counsel for petitioner as well as learned Deputy Advocate General and perused the record. Initially the FIR was lodged under sections 354, 341 and 509, P.P.C. which are bail as per schedule II of Cr.P.C. and during investigation sections 376 and 511 were added/inserted by the prosecution in the challan. From perusal of record it reveals that admittedly no attempt has been made by the petitioner to commit Zina with victim lady as it was not claimed by the victim and the clothes of the alleged victim had not been torn during alleged incident nor the clothes of the victim had been taken off so as to commit Zina or Zina-bil-Jabar with her. In the circumstances whether allegations contained in the FIR/challan attract the provisions of sections 376, 354 and 511, P.P.C. is a question which calls for further inquiry/probe and same shall be determined by the learned trial court at the time of trial on the basis of the evidence to be recorded by the learned trial court.

7. Moreover, incident was taken place on 24-7-2017 and the accused/ petitioner was arrested on 05-3-2018 and perusal of contents of FIR reveals that name of the petitioner accused is not mentioned in the FIR but identification test/period was not held. The accused/petitioner is behind the bars for last more then 5 months.

8. In the circumstances, I am of the considered view that the petitioner has been able to make out his case for bail which is granted to him subject to his furnishing bail bonds in the sum of Rs.200,000/- with two sureties each in the like amount to the satisfaction of the learned trial court. File. MQ/184/GB Bail granted.