2013 PLP 1478 (YLR)

ABDUL SAMI KHAN, J.

Through this petition under section 497, Cr.P.C. Muhammad Hanif, Gulbadan and Yawar Khan petitioners, have sought bail after arrest in case F.I.R. No. 1473/12, dated 18-10-2012 registered at Police Station Factory Area, Lahore in respect of offences under sections 365-B and 376, P.P.C.

2. The learned counsel for the petitioners contends that the petitioners have been roped in this false case by the complainant with mala fide intention and ulterior motives after joining hands with the local police. The petitioners are not named in the F.I.R. and they have been introduced in this case through a supplementary statement recorded by the complainant on 19-10-2012. In the supplementary statement got recorded by the complainant he has not mentioned his source of information that how he came to know about the involvement of the present petitioners in this case. The complainant and alleged abductee have involved three persons of a family in this case and it is unbelievable that a father and two real sons, would commit Zina-bil-Jabr with a girl. The true fact of this case is that the alleged abductee has contracted marriage with petitioner No.2 on 14-10-2012. After the alleged abduction the abductee filed a petition before the learned Justice of Peace stating therein that due to her marriage she is being harassed by her father. The alleged abductee kept on changing her versions at different occasions which brings the case of the petitioners under the ambit of further inquiry. The petitioners are previous non-convicts, the investigation of this case is complete, the petitioners are not required by the police for further investigation, thus, their continuous incarceration in jail would not serve any beneficial purpose at this stage. Petitioner No. 3 is a minor, aged about twelve and a half years and he is school-going boy cannot even think about commission of such like offence. The learned counsel for the petitioner produced original School Leaving Certificate and the copy of School Attending Sheet substantiate his argument.

3. On the other hand the learned Deputy Prosecutor-General assisted by the learned counsel for the complainant after going through the record submits that there is absolutely no mala fide on the part of the raiding complainant to falsely involve the petitioners in this case. The prosecution witnesses, including the abductee, in their statements recorded under section 161, Cr.P.C., duly involve the petitioners in this case. The offence with which the petitioners are charged falls under the prohibitory clause of section 497, Cr.P.C. The supplementary statement was got recorded by the complainant on the subsequent day of lodging of the F.I.R. wherein the petitioners have been nominated. The abductee has got recorded her statement under section 164, Cr.P.C. wherein she has levelled specific allegation of Zina-bil-Jabr against the petitioners. During the investigation the petitioners have been found involved in this case. Challan has been submitted in this case and instead of granting bail to the petitioners a direction should be issued to the learned trial Court to conclude the trial expeditiously.

4. I have heard the learned counsel for the parties and have gone through the record with their able assistance. It has been noticed by this Court that there is a delay of five days in registration of the F.I.R. which has not been explained by the complainant and the names of the petitioners do not figure therein. Their names have been introduced by the complainant for the first time through a supplementary statement which was got recorded on subsequent day of the registration of the instant criminal case and that too without any source. I shall express here for limited purpose that such supplementary statement has got no values in the eyes of law. During the investigation of this case the alleged abductee had got recorded her statement to the Investigating Officer under section 161, Cr.P.C. but astonishingly she had not levelled allegation of committing Zina-bil-Jabr against the petitioners. It is also significant to point out here that at one stage the alleged abductee has moved a petition on 22-10-2012 under section 22-A, 22-B, Cr.P.C. before the learned Justice of Peace wherein she has categorically mentioned that she has contracted marriage with petitioner No. 2 of her own free-will and volition and she is being harassed by police at the behest of her father Mueen Khan and her brothers. The alleged abductee kept on changing her stances at different stages and at different forums and such divergent stands taken by her has cast serious doubt in the prosecution's story set forth in the F.I.R.

5. It shall also not be out of place to point out here that the complainant has spread the net wide and entangled three persons of a family because petitioner No.1 is father and petitioners Nos. 2 and 3 are his real sons. It does not appeal to a prudent mind that a father would commit Zina-bil-Jabr with a girl along with his own sons and especially with the wife of his son. If this is not enough Yawar Khan petitioner No. 3 is a school-going student of twelve and a half years age. To substantiate his arguments the learned counsel for the petitioner produced his School Leaving Certificate as well as his School Attending Sheet to establish his plea of alibi which have been brought on the record of this case as Mark-A and Mark-B respectively.

6. Apart from what has been discussed above the opinion of the police is not binding upon the courts of law to be act upon in stricto sensu because the Court has to see every case with the touchstone of law and the facts and circumstances of the case. Similarly submission of challan in the court is also not a ground to refuse bail to accused persons when otherwise they have made out a good case for grant of their post-arrest bail.

7. For what has been discussed above the shadow of doubts are looming large in this case rendering the case against the petitioners within the purview of further inquiry into their guilt covered by subsection (2) of section 497, Cr.P.C. This petition is, therefore, allowed and the petitioners are admitted to bail subject to their furnishing bail bonds in the sum of Rs.50,000 (Rupees fifty thousand only) each with one surety each in the like amount to the satisfaction of the learned trial Court. MWA/M-48/L Bail granted.