2013 PLP 2642 (YLR)

ASSADULLAH KHAN CHAMKANI, J.

Having failed to secure relief from the courts below, Rahim Shahid has applied for bail before this court involved in case F.I.R. No. 84 dated 16-2-2013 under sections 376/506, P.P.C., registered at Police Station Khurshid Khan Shaheed (Khwazakhela).

2. Facts of the case are that Mst. Habib Nisa submitted an application before the District Police Officer, Swat, alleged therein that her parents were residing at Dubai while she was living with her brother and grandmother in the house, situated at Jaro Dhery, Khwazakhela. Accused Saeed Ullah was working as labour with the mason in her house. On the eventful day, the mason was on leave while she was present in her house all alone, when Saeed Ullah, after Asar time, came to the house on the pretext that he was watering the plaster. She opened the door and on entering the house, accused Saeed Ullah committed rape upon her at dagger point and threatened her not to disclose the event to anybody else. For his facilitation, Rahim Shahid (the present petitioner) was also standing armed with Kalashnikov. She alleged that she is already in nikah with one Javid and her "rukhsati" had not yet taken place. Upon the application, an enquiry under section 157(1), Cr.P.C. was started and during inquiry statements of P.Ws. were recorded, which culminated into registration of the above referred case F.I.R.

3. Learned counsel for the petitioner argued that accused-petitioner is innocent and has falsely been implicated in the case in order to destroy his future. He further argued that from the contents of application an offence under section 376, P.P.C. is not attracted against the petitioner rather an offence under sections 506/109, P.P.C. are applicable against him. He further argued that, though, the name of petitioner has been mentioned in the application by the complainant but she has not named/charged him in her statement recorded under section 164, Cr.P.C., therefore, his case requires further probe into his guilt and is deserved to be released on bail.

4. On the other hand, learned State Counsel and counsel for complainant argued that the accused/petitioner is directly charged by the complainant. They argued that there is sufficient material on the record which could prima facie connect the petitioner with the commission of offence falling within the prohibitory clause of section 497, Cr.P.C. They further contended that challan in the case is complete; therefore, at this stage of the case, the petitioner is not entitled to the concession of bail.

5. Arguments heard and record perused.

6. Perusal of the record shows that, though, the present petitioner has been named in the application by the complainant for facilitating his co-accused Saeed Ullah in the commission of offence, however, she in her statement recorded under section 164, Cr.P.C. did not name/charge him for the offence. There is nothing on record which could prima facie connect the petitioner with the commission of offence. Without touching other aspects of the case, least it may prejudice the case of either party, on tentative assessment of the case, the case of the petitioner is one of further inquiry. Besides, a mistaken grant of bail would be cured by ultimate conviction if the guilt is proved but there would be no compensation if the bail is wrongly refused and, moreover, bail cannot be withheld as punishment.

7. As far as contention of learned State counsel that challan is complete and at this stage the petitioner is not entitled to be released on bail is not much convincing because mere fact that the challan is complete or put in court by itself cannot be considered a good ground to refuse relief of bail to the accused, if otherwise his case is found fit for the grant of bail. In this regard reliance is placed on the case of Mst. Maria Khan v. The State and another (2013 SCMR 49), wherein it has been held that this is not a valid consideration in the circumstances of the present case nor is it an absolute rule that where evidence has been recorded, the accused could not be enlarged on bail. Consequently, this application is accepted and the petitioner be released on bail in case he furnishes bial bonds in the sum of Rs.3,00,000 (three lac) with two sureties each in the like amount to the satisfaction of Illaqa Judicial Magistrate, who shall ensure that the sureties are local, reliable and men of means. These are the reasons of my short order announced on 8-4-2013. MWA/328/P Bail granted.