2002 PLP 1514 (YLR)

Rao Khalil‑ur‑Rehman for the State. Abdul Sattar and Sajid Imran petitioners have sought confirmation of their ad interim pre‑arrest bail in case F.I.R. No.39 registered at Police Station City, Vehari on 27‑2‑2002 for an offence under section 10 of the Offence of Zina (Enforcement of Hudood) Ordinance, 1979.

2. According to the F.I.R. Mst. Nabila Bibi aged 11/12 years daughter of the complainant went to the shop of co‑accused Muhammad Arshad and did not return for quite some time. The complainant reached the shop of Muhammad Arshad and saw that it was locked. At about 5‑30 p.m. on the same day, Mst. Nabila was found weeping in a ground and she disclosed to the complainant that she was subjected to rape by Muhammad Arshad and two others. She further stated that the accused were equipped with a pistol. It is further stated in the F.I.R. that the complainant approached Muhammad Arshad and others (not named) who confessed their guilt and asked for forgiveness.

3. The learned counsel for the petitioners has submitted that the petitioners have joined the investigation; nothing has to be recovered from them; they have not been named in the F.I.R. and have been roped in the case due to enmity with the complainant. Conversely, the learned counsel for the complainant and the learned counsel for the State have vehemently opposed the grant of pre‑arrest bail to the petitioners and have contended that the petitioners were involved in a very heinous offence; they were named by the victim when her statement was recorded and the statement of the victim was corroborated by the medical evidence. It is also argued that the victim had no reason to involve the petitioners falsely in this case.

4. I have heard the learned counsel for the parties and have also gone through the record of the case. Admittedly, the matter was reported to the police after a delay of 1/1‑2 months and in this belated F.I.R. the names of the petitioners were not mentioned. The F.I.R. was recorded on the statement of Saeed Ahmad father of victim Mst. Nabila on 27‑2‑2002. It is hard to believe that Mst. Nabila did not disclose the names of the petitioners to her father for 1‑1/2 months. The supplementary statement of the complainant was recorded on the same date i.e. 27‑2‑2002 and according to that statement the complainant knew about the guilt of the petitioners five days prior to the registration of F.I.R. yet he did not name the petitioners in the F.I.R. The victim was medically examined after more than 1‑1/2 months. No plausible explanation has been made in the F.I.R. as to why the complainant shielded the accused for such a long time. The petitioners have admittedly joined the investigation anti according to the Investigating Officer the investigation in the case has been completed. The allegations against the petitioners need further probe and inquiry.

5. It was held in the case of Malik Noor Ahmad and another v. The State (PLD 1993 Lahore 500) that accused whose involvement in the case appears to be false and mala fide must be protected by a Court of law. Mala fide involvement may be due to the ulterior motives of the complainant or the police. If police shares the ulterior motives of the complainant party and attempts to arrest an accused person collusively then the police can also be presumed to be acting with mala fide intentions. An accused need not show express malice on the part of the Investigating Officer.

6. In the case of Muhammad Asif v. The State (1990 PCr.LJ 278) it was held that the scope for grant of pre‑arrest bail to accused appeared to have been widened by Supreme Court in Meeran Bux v. The State (PLD 1989 SC 347), which change could easily be spelt out from close reading of the judgment.

7. In the case of Iqbal Muhammad Saeed and others v. The State and 2 others (1992 PCr.LJ 2086) it was held that power under section 498, Cr.P.C. though of an extraordinary nature is meant to be exercised in appropriate cases and the refusal to exercise such discretion when the circumstances of a case demand for such exercise of discretion may reduce section 498, Cr.P.C. to a dead letter.

8. For what has been discussed I am inclined to confirm the ad interim pre‑arrest bail already granted to the petitioners by this Court vide order, dated 2‑5‑2002 subject to their furnishing fresh bail bond in the sum of Rs.1,00,000 (Rupees one hundred thousand only) each with one surety, each in the like amount to the satisfaction of the learned trial Court. N.H.Q./A‑549/L Pre‑arrest bail granted.