2018 P Cr (PLP)

MUHAMMAD SALEEM JESSAR, J.

Through this application, applicants Akhtiar Ahmed and Mukhtiar seek pre-arrest bail in Crime No.152/2016 registered with Police Station A-Section Thull, District Jacobabad, for offences punishable under sections 376, 338-C and 506/II, P.P.C.

2. On 02.9.2016 complainant/ victim Farhat Khan Sarki reported the matter to the effect that their lands are located adjacent to lands of accused Akhtiar and Mukhtiar (both brothers). It was further alleged by her that about 4/5 months prior she had been going to her land for cutting grass, where accused Akhtiar, Mukhtiar and two unknown persons, whom she claimed to recognize on seeing again, were also coming for cutting grass, and accused Akhtiar together with others was harassing, threatening and forcibly committing Zina with her and due to fear she could not disclose this fact to her family and on the day of registration of FIR, she being available at her home felt abdominal pain, hence she accompanied her mother and grandmother for medication and on way they were intercepted by the accused. It is further alleged that accused Mukhtiarkar administered some sort of tablets to her and poured water in her month and said that she would be relieved and later she aborted a child.

3. Learned counsel for the applicants at the very outset stated that complainant/victim Mst. Farhat Sarki and P.Ws. Mst. Ameeran and Mst. Sat Bhai alias Chutti have sworn their affidavits before this Court wherein exonerated the applicants from commission of alleged offence. He further submitted that in-fact upon intervention of Nekmards of locality the victim family has forgiven the accused/ applicants and from their pleadings it appears that they have been compensated. In support of his contentions the learned counsel relied upon case of Alif Ali v. The State and another reported as 2016 YLR 2454; Aziz-ur-Rehman v. Sarfraz and another reported in 2016 YLR 2099 (Peshawar); Bakhat Alam v. The State reported as 2016 MLD 1935 (Peshawar); Mazhar Iqbal and others v. The State reported in 2004 PCr.LJ 923.

4. Learned D.P.G. has opposed the bail application on the ground that the applicants are nominated in the FIR with specific allegation. However, he did not controvert the fact that as per version of complainant in her FIR she remained mum for noticeable period and did not disclose the allegation to her family and even there is no plausible explanation for such apathy on her part.

5. I have heard the counsel for the parties and perused the record with their assistance.

6. Since in the instant case, the victim and other prosecution witnesses i.e. mother and grandmother of victim, have categorically stated that they have been compensated by the accused and factum of real amount is known to their elders viz. male members of their family, thereby they have laid down their hands from the case. Normally, release of an accused of offence, falling within meaning of prohibitory clause, has been made conditional to fulfillment of requirement of phrase, used in section 497 i.e. 'reasonable grounds to believe innocence of the accused'. The liberty of a person, in law, cannot be left to be controlled by the whims and wishes of a victim but law insists protection thereof jealously. This was the reason because of which the law is by settled now that once the accused brings his case within meaning of further inquiry he 'shall' be entitled to be released on bail not as matter of grace but as 'right'. I would add that the section 497 of the Code, no where, provides a room for release of an accused on basis of 'affidavits', sworn by victim or witnesses even, because the Code while detailing the 'investigation and trial procedure' gives no legal weight to such affidavit(s) but attaches weight to statement(s), recorded during course of investigation or trial, in the manner as directed by law and procedure, therefore, affidavit(s) during trial, solely for purpose of getting one bailed out, is not highly worth appreciating trend for disposal of bail pleas which, legally, has to be decided on tentative assessment. Reference may be made to the case of Naseer Ahmed v. The State PLD 1997 SC 347 wherein it is held as: "7...... At the time of hearing of bail application Court is supposed to do tentative assessment of the material available on the record, which is different from final appraisement and evaluation of evidence which is to be done by the trial Court which has to record evidence of witnesses. A trend has developed nowadays that eye-witnesses some times take a somersault and give statements which are different from prosecution case and some times file affidavits also at the stage of hearing of bail applications of accused persons with intention of creating doubt in the case of prosecution to enable the accused to get bail. The Courts have to be very careful in such cases and see that bail applications are disposed of strictly according to law on merits keeping in view the distinction between tentative assessment and actual evaluation of evidence by the trial Court." However, since such a witness by making an statement on Oath (affidavit) brings his earlier stand (statement under section 161, Cr.P.C.) under clouds or least opens a door towards credibility of such a witness. Thus, once it appears to satisfaction of the Court that such affidavit is not prima facie result of some coercion then benefit of such summersault should be given to accused even at bail stage. This aspect even was acknowledged in the case of Naseer Ahmed supra as: ".... It is the mind of the Court which is to be satisfied where about-turn of some of eye-witnesses in the manner stated above shakes up the whole prosecution case from the point of view of credibility of the remaining material." Further, in the case of Muhammad Najeeb v. State 2009 SCMR 448 the honourable Supreme Court held such deviation through affidavit as 'further inquiry' in following manner: "6. ...Though initially petitioner was nominated in the FIR by the complainant as an accused but later on through affidavit he stated that he is satisfied with regard to the innocence of the petitioner and does not want to proceed with the matter. This aspect of the matter has not been taken into consideration by the Courts below. We without touching the merits of the case are of the view that case of petitioner is of further inquiry. In another case of Syed Iftikhar Hussain Shah v. Syed Sabir Hussain Shah and 02 others reported in 1998 SCMR 466, whereby it was held that upon statement of complainant at the time of disposal of the pre-arrest bail application of accused he had made statement before the Sessions Court that he had received sum of Rs.4000/- from the accused as compensation for settlement of the case and in consequence whereof interim pre-arrest bail already granted to accused was confirmed. However, the learned Sessions Judge on taking cognizance of the case refused to acquit the accused on the basis of said statement of the complainant and High Court in revision had directed the Sessions Court to acquit the accused as and when hearing took place. Such order of the High Court was maintained and while deciding the petition honourable Supreme Court had held as under: "Be that as it may, after reading the statement of the petitioner recorded by the learned Additional Session Judge while disposing of the pre-arrest bail application of respondents, we are in no doubt that a sum of Rs.4,000/- was received by the petitioner as compensation for settlement of the case and as such it is not a fit case in which leave should be granted. The order of the learned Judge in Chamber is a just and proper order in the circumstances of the case and no case is made out for interference with this order. Petition is accordingly, dismissed and leave to appeal is refused."

7. In the instant case, as admitted by complainant/victim, her mother and grandmother that they have been compensated by the accused outside the Court, therefore, they have given no objection for grant of bail in favor of the applicants. Such attitude can well be taken as one of the grounds of further inquiry. The reference can be had from the case of Sajid alias Chitta reported as 2016 SCMR 2089, whereby Hon'ble Supreme Court has held as under: "After hearing the learned counsel for the parties and going through the record we have observed that the FIR in this case had been lodged with a delay of ten days and the firearm injury attributed to the petitioner on the left calf of Muhammad Shaft deceased was non-existent in the Post-mortem Examination Report pertaining to the dead body of the deceased. It is not denied that the injured witness namely Rasheed alias Talli had made a statement before the learned Additional Session Judge, Pattoki on 05.09.2015 clearly maintaining that Sajid alias Chitta petitioner was not present at the spot and a similar affidavit had also been sworn by Muhammad Iqbal complainant maintaining that the petitioner was not present at the scene of the crime at the relevant time. For all these reasons we have found the case against the petitioner to be a case calling for further inquiry into his guilt within the purview of subsection (2) of section 497, Cr.P.C. This petition is, therefore, converted into an appeal and the same is allowed and, consequently, Sajid alias Chitta petitioner is admitted to bail in the above mentioned criminal case subject to furnishing bail bond in the sum of Rs.1,00,000/- (Rupees one hundred thousand only) with one surety in the like amount to the satisfaction of trial Court."

8. In another case of Alif Ali (supra), in a case of car theft and other motor vehicle the recovery of stolen property was effected from the possession of accused; the complainant of that case had laid off his hands from the trial by filing his affidavit whereby he had extended his no objection, the bail was granted to accused.

9. In case of Aziz-ur-Rehman (supra), in a murder case, the injured and complainant had sworn affidavits before High Court to the effect that they have nominated the accused in a state of fear and disturbance on account of previous blood feud. The bench of Peshawar High Court had considered the same and granted bail to accused therein.

10. In case of Bakhat Alain (Supra) the bench of Peshawar High Court granted bail in a case of dacoity, where the robbed amount was recovered from the residential room of accused and the complainant therein had sworn his affidavit showing his satisfaction regarding innocence of the accused and raised no objection for his release on bail, the bail was granted to accused therein.

11. In case of Mazhar Iqbal (Supra) pre-arrest bail was granted to accused on the ground of affidavits filed by the complainant, it was further held that mere heinousness of the offence was no ground for refusal of the bail to an accused.

12. The ratio decidendi in aforementioned citations is that the affidavits filed by the prosecution witnesses either by the victims were considered and cases against the petitioners therein were treated to be cases of further enquiry. In the instant case same is the position, the victim who herself is the complainant, and her witnesses have categorically stated that they have no grudge against the applicants and they have not been compelled or pressurized by any person to surrender their case. Whatever they have stated was voluntary, therefore, have not supported the prosecution case and likely have extended their no objection for grant of pre-arrest bail. It is settled principle of law when the star witnesses/complainant or victim may not wish to pursue their case and laid their hands off by filing such affidavits, prima facie presumption could be drawn that trial against the applicants would not conclude in conviction. Hence, the case against the applicants, in the circumstances, requires further enquiry.

13. Since the victim remained mum for noticeable period spreading over 4/5 months, for which no plausible explanation has been furnished. Moreover, 161, Cr.P.C. statements of the prosecution witnesses namely, Mst. Chuti and Mst. Ameeran were recorded on 01.10.2016 with delay of about one month from the FIR and memo of inspection of place of vardat was also prepared on 05.09.2016. All these factors have cast serious doubt upon the veracity of prosecution evidence and thus have entitled the applications to concession of pre arrest bail.

14. In view of the affidavits duly sworn in by the complainant/victim and her alleged eyewitnesses the case against the applicants becomes the case of further enquiry within the purview of subsection (2) of section 497, Cr.P.C. Consequently, the application is allowed. The interim pre-arrest bail granting order dated 01.12.2016 is hereby confirmed on same terms and conditions. However, the learned trial Court is directed to expedite the trial of the case and conclude the same within reasonable time.

15. Needless to mention, that the observations made hereinabove are tentative in tentative in nature and would not prejudice case of either party at trial. JK/A-21/Sindh Bail confirmed.