2012 PLP 1839 (YLR)

SHAHID HAMEED DAR, J.

Muhammad Akram and Nadeem petitioners seek bail before arrest in case F.I.R. No.737 of 2011 dated 2-11-2011 under section 376, P.P.C. registered at City Patoki (Kasur).

2. The petitioners were found innocent during the course of investigation and their names were placed in Column No.2 of the challan. Learned trial court summoned them on an application of the complainant and directed them to apply for bail before arrest which they did but their efforts ended in smoke as learned trial court dismissed their application for bail before arrest, hence, the instant petition.

3. Precisely, the prosecution case as narrated by Shaukat Ali complainant is that both the accused Muhammad Akram and Nadeem (petitioners) trespassed onto his house and one of them namely Muhammad Akram committed zina bil jabr with his daughter Mst. Nabeela Bibi; the occurrence was witnessed by Farzand Ali and Allah Ditta and on seeing them approach the place of occurrence, both of them fled the spot.

4. Learned counsel for the petitioners submits that petitioners have been found innocent repeatedly by different Investigating Officers and their names stand placed in column No.2 of the challan; medical evidence is inconsistent with the ocular account; both the eye-witnesses resiled from the prosecution case and they categorically stated before the Investigating Officer that they had not witnessed the occurrence. Lastly submits that implication of the petitioners is based on male fide and ulterior motives of the complainant.

5. Learned Deputy Prosecutor General Punjab assisted by learned counsel for the complainant opposes with the contention that the alleged victim Mst. Nabeela Bibi in her statement under section 161, Cr.P.C. has fully supported the prosecution case; the offence committed by the accused catches the prohibition of section 497(1), Cr.P.C. and in absence of any ulterior motives, they may not be granted the extraordinary relief of bail before arrest.

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

7. The story contained in the F.I.R. appears to be preposterous and unconvincing. The complainant has alleged that he along with his other family members were asleep in the courtyard of his house where his daughter Mst. Nabeela Bibi also slept. It is very hard to digest that in presence of other family members, Muhammad Akram accused succeeded in ravishing Mst. Nabeela Bibi. The medical evidence does not support the prosecution case in its present form, as medical officer has observed that scratches on the chest of the examinee were fabricated. The medical officer also opined that the examinee/victim was used to the act of coitus and she enjoyed the sex game habitually. Both the eye-witnesses Farzand Ali and Allah Ditta categorically stated before the Investigating Officer on 19-12-2011 that they had not witnessed the occurrence and they had been falsely cited as eye-witnesses by the complainant. There exists no other incriminatory circumstance to corroborate the version of the alleged victim. The probability cannot be ruled out that both the accused/petitioners had been falsely involved in this case under a certain plan by the complainant mainly due to his malice and ulterior motives, which form the condition precedent for grant of bail before arrest. Sufficient reasons exist to believe that petitioners' case constitutes need for further inquiry into their guilt as contemplated under section 497(2), Cr.P.C.

8. Therefore, the instant application is accepted and the ad interim pre-arrest bail allowed to the petitioners on 13-3-2012 is confirmed subject to furnishing fresh bail bonds in the sum of Rs. 1,00,000 each with one surety each in the like amount to the satisfaction of learned trial Court. M.W.A./M-165/L Bail confirmed.