P L D 2004 Lahore 511 (PLP)

Aftab Hussain Bhatti for the Complainant. Through this petition Muhammad Sharif petitioner has sought pre‑arrest bail in case F.I.R. No.278 registered at Police Station Jaranwala, District Faisalabad on 21‑3‑2004 for an offence under section 10 of the Offence of Zina (Enforcement of Hudood) Ordinance, 1979. Earlier on an application submitted by the petitioner for the same relief before the Court of Session, Faisalabad had been dismissed by the learned Additional Sessions Judge, Jaranwala, District Faisalabad vide order dated 5‑4‑2004. Hence, the present petition before this Court.

2. After hearing the learned counsel for the parties and going through the record of this case with their assistance it has been felt by this Court that if this petition were to be decided upon cursory considerations floating on the surface of this case then it would have sufficed for dismissal of this petition to observe that the petitioner has been nominated in the F.I.R. as the sole perpetrator of the alleged offence and a definite allegation has been levelled against him regarding commission of Zina‑bil‑Jabr with Mst. Surayya Bibi and apparently the said lady, the complainant and the two eye‑witnesses mentioned in the F.I.R. are so far supporting the allegation levelled against the petitioner. However, if the surface of this case is scratched a little and the background of this case is attended to a little closely then it emerges that there may be something more to the allegation levelled against the petitioner in the F.I.R. than what appears at the facade and there may be a real possibility of the petitioner being entangled in an entirely cooked up case: As the matter in hand pertains to a question involving liberty of a citizen, therefore,. I have decided to exercise caution and to attend to the background and the attending circumstances of this case before deciding this petition.

3. According to the F.I.R. the alleged commission of Zina‑bil‑Jabr by the petitioner with Mst. Surayya Bibi on 20‑3‑2004 had been witnessed by Hakim Ali complainant as well as Nazir Ahmad and Khalil Ahmad P. Ws. document appended with this petition as annexure‑C shows that on 18‑3‑2003 the present petitioner had lodged an F.I.R. against the complainant and both the above mentioned eye‑witnesses of the present case regarding a theft of the some trees and thereafter, as is evident from the document annexed with this petition as Annexure C/1, the petitioner had also instituted a private complaint against these very persons on 10‑5‑2003 in respect of the same offence and in the complaint case the learned trial Court had found a prima facie case to have been made out against the complainant and the eye‑witnesses of this case, and, thus, they were summoned to face a trial. An application submitted by the complainant and the eye‑witnesses of this case under section 249‑A, Cr.P.C. was dismissed by the learned trial Court seized of that complaint case on 14‑2‑2004 and thereafter a charge against the complainant and the other two eye‑witnesses of this case was framed by the learned trial A Court in connection with that private complaint on 19‑2‑2004. On 18‑3‑2004 the learned trial Court seized of that complaint case had adjourned the case to 27‑3‑2004 for recording of statements of the prosecution witnesses. The F.I.R. in the present case had been lodged by the complainant herein against the petitioner on 21‑3‑2004. The document appended with this petition as Annexure‑U further shows that on 27‑1‑2003 the present petitioner had instituted a civil suit for permanent injunction against the complainant and both the above mentioned eye‑witnesses of the present criminal case and the said civil suit as well as a contempt petition filed by the petitioner therein were pending before the relevant civil Court at the time of registration of the present F.I.R. against the petitioner. The background in which the present criminal case was registered against the present petitioner, thus, speaks for itself.

4. According to the F.I.R. lodged in this case the complainant and the other two eye‑witnesses had heard the shrieks of the alleged victim at a time when the complainant and the said eye‑witnesses were statedly available in the house of Khalil Ahmad P.W. The site plan of the place of occurrence prepared in this criminal case by the Investigating Officer does not show the said house of Khalil Ahmad P.W. in immediate vicinity of the place of occurrence as the said house is not shown in the site plan at all. It has also intrigued this Court to learn that no witness from inside the house of occurrence or from the houses situated in immediate proximity with the house of occurrence had come forward to witness the alleged occurrence and it was none other than the same complainant and the eye‑witnesses who were inimically disposed towards the petitioner on account of the pending criminal and civil litigation between the parties who were attracted to witness the present occurrence, It is not disputed that the medico‑legal examination of the alleged victim namely Mst. Surayya Bibi does not reflect any injury on any part of her body and the report of the Chemical Examiner regarding her vaginal swabs is in the negative. The occurrence in this case had statedly taken place at 11‑00 p.m. Mst. Surayya Bibi is statedly a married lady of about thirty‑five years of age and is a mother of five children whereas the present petitioner is stated to be about 55/60 years old and he too is a married man having been blessed with seven children. It is curious that the presence of Mst. Surayya Bibi's husband or children in the house of occurrence or even their absence from that house has found no reference or explanation in the investigation of this case. It has also been suppressed during the investigation of this case as to whether any other person was living in or was available at the said house or not so as to become a witness in this case. The learned counsel for the petitioner has tried to refer to some documents in order to impeach credibility of Mst. Surayya Bibi, the alleged victim, and to assert that she is not a chaste lady and being closely related to one of the eye‑witnesses in this case she could have volunteered to come forward in order to save such witness from the criminal prosecution launched by the petitioner against him but I have stopped him from doing that at such a stage of the case. All these factors have, however, gone a long way in creating an impression in my mind that the assertion of the learned counsel for the petitioner regarding mala fide implication of the petitioner in the case in hand is an assertion which may not be entirely untrue or without any foundation or substance.

5. The learned counsel for the State has confirmed the fact that the petitioner has already joined the investigation. He has, however, maintained that the petitioner's physical custody is required by the police in order to effect recovery of a pistol from him. The pistol allegedly carried by the petitioner at the time of the alleged occurrence had not been fired from and, thus, even if a pistol is recovered from the petitioner's possession still such a recovery is going to be legally inconsequential because any such pistol recovered from the petitioner may not stand connected with the alleged offence. Liberty of a citizen is too precious and sacrosanct to be sacrificed at the altar of an inconsequential recovery.

6. For what has been discussed above, I have found that the case in hand is a fit case for admission of the petitioner to pre‑arrest bail. This petition is, therefore, accepted and the ad interim pre‑arrest bail already allowed to the petitioner by this Court vide order dated 7‑4‑2004 is hereby confirmed subject to furnishing of afresh bail bond by the petitioner in the sum of Rs.50,000 (Rupees fifty thousand only) with one surety in the like amount to the satisfaction of the Area Magistrate of Police Station Jaranwala, District Faisalabad within a period of two weeks .from today.

7. Before parting with this order I cannot help observing that the unusual length of this order as well as the unusual detail of the contents thereof have been necessitated by the dictates of justice and fairness as allowing an arrest of the petitioner in a case with such a background has been found by me to be unconscionable. It is, however, clarified that the observations made by me in the present order shall be treated as tentative in nature and the same shall not prejudice the Investigating Officer or the learned trial Court in any manner. N.H.Q./M‑234/L Pre‑arrest bail granted.