2004 P Cr (PLP)

Syed Altaf Hussairi Bokhari for the Complainant. Sheikh Imtiaz Ahmad for the State (in Criminal Miscellaneous No.2846/B of 2003). Masood Sabir for the State (in Criminal Miscellaneous No.2912/B of 2003). This single order will dispose of two applications for pre‑arrest bail i.e. Criminal Miscellaneous No.2846/B of 2003 and Criminal Miscellaneous No.2912/B of 2003 as the petitioners in both the applications are accused in similar case F.I.R. No.365 of 2003 registered on 4‑9‑2003 at Police Station City Lodhran under sections 10(4)/11, Offence of Zina (Enforcement of Hudood) Ordinance VII of 1979 read with sections 365, 342 and 109, P.P.C. on the statement of Khalida Parveen.

2. Complainant in her statement under section 154, Cr.P.C. claimed her to be household woman permanently residing at Gogran but temporarily resident of Farid Gate, Bahawalpur with her parents. On 29‑8‑2003 she alor4with her younger brother aged about 8 years in order to go to Gogran, her village, at Maghrab Wela was standing at Adda Jalalpur Morr while waiting for bus When a car Nisan Sunny black colour being driven by one person subsequently, whose name was known as Muhammad Bilal stopped near them and he asked her about their destination. The complainant replied that she want to go to Gogran whereupon Muhammad Bilal offered to take them to the said village, as there was no possibility of coming of any bus due to late hours. The complainant firstly refused but on his insistence and assurance that he was going to Gogran as it was evening time, the complainant and her brother Muzammil boarded in the car. Muhammad Bilal played the car towards Gogran but subsequently took the complainant and .her brother to a. village. She raised hue and cry and asked him to let her go to her house, but he threatened her with dire consequences and took the complainant to his house situated in Lodhran city near Jalalpur Morr, where ‑four persons were already present and their names were subsequently known as Khalid Saqi, Istikhar Balouch, Mukhtar Baloch and Khalil Wahga alongwith one Amjad. Baloch who posed himself as Inspector (Police) and she can identify them. Amjad Balouch petitioner threatened that nobody would come to hear her noise. He while armed with fire‑arm, had threatened her with dire consequences and left the house after 1‑1/2 hours while locking the door from outside. Istikhar Balouch and Khalil Ahmad remained present in the courtyard. Muhammad Bilal and Khalid Saqi had committed Z3na with her. Istikhar Blouch and Khalid Ahmad, however, could not succeed in their nefarious design due to hue and cry of complainant although they had tried for it. Amjad Baloach came back in the morning and released the complainant and her brother from the said house. In the meanwhile, the complainant confronted with Raheem Bakhsh and Muhammad Bakhsh, her relatives, who were searching them and they were told the occurrence. Hence the case way registered.

3. Learned counsel for Amjad petitioner contends that the petitioners are innocent as the complainant has already appeared before the Sessions Court and sworn affidavit that she could not identify the real culprits, hence co-accused Muhammad Bilal and Khalid Saqi have been granted bail after arrest by the learned Additional Sessions Judge vide order, dated 1‑11‑2003, thus, it has become a case of no evidence and petitioner is entitled to pre‑arrest bail. Similarly, learned counsel appearing on behalf of Khalil Ahmad petitioner also argues that the affidavits have been sworn in favour of the petitioner by the complainant alongwith witnesses and she is also present in the Court to verify this fact, hence, there being no evidence against the petitioner, he is also entitled to the grant of discretionary relief in the shape of pre‑arrest bail.

4. On the other hand, learned counsel for the complainant admits that the offences are not compoundable but has contended that Khalida Parveen complainant is present in Court and does not own the prosecution story with no objection to the grant of pre‑arrest bail to both the petitioners.

5. Learned counsel for the State, however, opposes the bail applications on various grounds.

6. I have heard the learned counsel for the parties and also perused the record with due care and caution. Both the petitioners moved separate applications for bail before arrest before the learned Additional Sessions Judge, Lodhran but they did not appear in spite of repeated calls when those were fixed for final hearing and the applications were dismissed on 27‑10‑2003 and 15‑10‑2003 respectively. Order, dated 17‑10‑2003 also reveals that earlier application of Amjad petitioner was also dismissed for non‑prosecution. Hence, they are not entitled to any discretionary relief by this Court due to their conduct only. Even otherwise, bail before arrest is meant to protect the innocent citizens if they are found to have been involved due to mala fide or ulterior motives. Petitioners have not alleged any mala fide or ulterior motives to falsely implicate them in the present case by the complainant or the witnesses. Similarly, the petitioners have not alleged any mala fide against the police for the registration of false case against them.

7. Due to their conduct the petitioners seem to have misused the concession of extraordinary relief for pressurizing the complainant to resile from her earlier version and only when they have succeeded in obtaining affidavits of the complainant in this regard, they have come in this Court, otherwise their conduct before the lower Court after obtaining interim bail was different as they did not bother to appear in the Court on final hearing and the applications were dismissed for non‑prosecution. In such circumstances there is also likelihood of tampering with the prosecution evidence. Amjad Hussain petitioner is a police constable.

8. At this stage it cannot be said that the complainant is out of pressure as according to the Inspector present with the record, the D.S.P. who is investigating the case has recommended for submission of challan against the accused under section 10(2) of the Ordinance, and the complainant may be afraid of her 'implication in the present case. Affidavits cannot be given the status of evidence at this stage. In PLD 1977 Lah. 1261 the affidavit sworn in favour of the accused was not taken into consideration on the ground that it was neither statement under section 161, Cr.P.C. nor 164, Cr.P.C. Similar view was also taken in the judgments reported as 1995 MLD 1254 and PLD 1990 SC

83. Petitioners are involved in a case of heinous offence and serious allegations have been levelled against them. There does not appear any reason for their false implication; hence; they are not entitled to any discretionary relief by this Court.

9. In such circumstances, both the applications for bail before arrest having no merits are hereby dismissed.

10. Before parting with this order I am constrained to notice that according to the copy of order, dated 1‑11‑2003 passed by learned Additional Sessions Judge‑II, Lodhran, produced by the learned counsel for the parties during arguments, Muhammad Bilal and Khalid Saqi co- accused have been granted bail after arrest only on the ground that the victim has sworn affidavit to the effect that they were not the persons who had committed the offence with her. On the other hand, in the F. I. R. both these accused persons have been specifically named with the allegations‑of commission of Zina. Whether the affidavit filed at bail stage in such a heinous offence due to the conduct of the accused noted above can be considered as a ground for grant of bail or not, is a question of determination. Hence notices are issued to Muhammad Bilal and Khalid Saqi co‑accused that why bail granted to them vide order dated 1‑11‑2003 passed by learned Additional Sessions Judge‑II, Lodhran may not be cancelled. Office shall prepare a separate file in this regard and fix the same for hearing on 19‑11‑2003.

11. S.H.O. Police Station City Lodhran will be personally responsible for service of the said accused and appear in this Court alongwith the record on the next date. Mr. Muhammad Qasim Khan, learned A.A.‑G. shall ensure the compliance of this order.

12. Deputy Registrar (Judicial) of this Court shall telephonically contact the learned Sessions Judge, Lodhran, direct him to send the record of bail applications whereby both the co‑accused have been granted bail and also inform him about the initiation of these suo motu proceedings. N.H.Q./A‑1029/L Bail refused.