1977 P Cr (PLP)

R. A. Awan for Petitioners. Akhtar Shabbir for the State. Muhammad Riaz and Abdul Hafeez have applied for bail before arrest under section 498, Cr. P. C. They are accused of offences under section 452/307/366/511, P. P. C. vide F. I. R. No. 1076/72, dated 12‑11‑1972.

2. Their earlier application (Criminal Miscellaneous No. 380/13 of 1973) for bail before arrest was dismissed by me on 9‑2‑1973, as a result of their being absent from the Court. They have filed the present application and it is urged that in view of the observations of the Supreme Court of Pakistan in Gulzar Hassan Shah v. Ghulam Murtaza (P L D 1970 S C 335) their petition should be heard and disposed of on merits. I have accordingly heard them and proceed to decide the petition on merits.

3. According to the above noted F. I. R, the petitioners raided the house of the prosecutrix when she was sleeping with her parents, brothers and sisters. They were armed with pistols and forcibly abducted her. Her brothers and sisters tried to rescue her but were fired at by Abdul Hafiz petitioner. Sher Khan, her brother, received firearm injuries in the abdomen, at the back and on the buttocks as a result of which he fell down on the Around. The motive is stated to be that a month prior to the occurrence Muhammad Riaz petitioner had asked for the hand of the prosecutrix in marriage but her father had refused.

4. The petitioners were granted interim bail before arrest vide my order dated 30‑1‑1973, so that their petition might not become infructuous. It was urged on behalf of the petitioners that the prosecutrix and her brothers have sworn affidavits saying that they had named the petitioners due to misunderstanding and that they had not in fact been able to identify them as it was dark on the night of the occurrence. No doubt that is so and the affidavits have been placed on the file, but as observed by Mr. Abdus Saeed Sabir, Additional Sessions Judge who rejected their bail application on 23‑1‑1973, the complainant party appears to have been overawed, terrorised and influenced by the accused/petitioners and thought it fit to retract from their earlier statements. This view is borne out by the fact that according to another F. I. R. (No. 63/73, dated 18‑1‑1973), lodged by Mst. Zaitoon (the prosecutrix) herself when she and her mother were going to the house of one Mst. Meraj Bibi, four per sons came out of a car parked in the way. They were armed variously, with knives and pistols. They forcibly lifted and put the two women in the car took them first to the house of one Hafiz Samad and not finding him there took them to a house in Gulberg where all of them got drunk; also made them to drink some wire and thereafter compelled them to take off their clothes and dance before them in a state of nakedness, under the threat of life. They also took their photographs in the nude, and also committed rape on Mst. Zaitoon she was also injured by a fist blow given by one of the accused on her mouth. When the accused got almost unconscious with wine, she and her mother managed to escape and came out of the bungalow, raising a noise. Some people gathered and saved them. She also stated in the F. I. R. that the accused had threatened them that they should stop pursuing the case lodged by her against Muhammad Riaz and Abdul Hafeez, the present petitioners or otherwise they (the complainant party) should be killed.

5. No wonder the poor girl (and her relatives) resiled from 'their statements and made an application to the District Magistrate for the cancellation of the case saying that they had named the petitioners in the F. I. R. dated 12‑11‑1972 due to mistake or misunderstanding. I have been told that Mst. Zaitoon has filed another affidavit saying that the present petitioners are not, in any way, concerned with the second incident. To my mind this is yet another indication of the pressure to which she is being subjected. This is an extremely serious case and the petitioners have applied for anticipatory bail, the grant of which has been depricated by the Supreme Court in Nisar Ahmad v. The State (P L D 1971 S C 174).

6. Keeping all the facts of the case in mind I feel there, are reasonable mounds for believing that the petitioners are prima facie guilty of an offence (under section 307, P. P. C.), which is punishable with transportation for life. This is, therefore, not a fit case for the grant of bail before arrest. The petition is accordingly dismissed. Petition dismissed.