2011 PLP 904 (YLR)

IQBAL HAMEED UR REHMAN, J.

Through this single order I intend to dispose of Criminal Miscellaneous No.7548-CB of 2010 titled "Muhammad Nawaz v. Shaukat Ali and three others" as well as Criminal Miscellaneous No.11383-CB of 2010 titled "Muhammad Nawaz v. Muhammad Haq Nawaz and another".

2. Since both the above captioned Criminal Miscellaneous petitions are outcome of the same F.I.R. No.631 of 2010 dated 26-5-2010 offence under sections 376(2)/ 337-A(i), 337-L(ii), P.P.C. registered at Police Station Madina Town, Faisalabad. Through' both the above mentioned petitions the complainant seeks the cancellation of the bail in Criminal Miscellaneous No.7548-BC of 2010 of respondent No.1-Shaukat Ali Hayat who had been granted pre-arrest bail as well as Muhammad Farooq and Muhammad Younas respondents Nos.2 and 3 respectively who have been granted post arrest bail by the learned ASJ, Faisalabad vide his order dated 2-7-2010. Whereas, the pre-arrest bail of Haq Nawaz had been refused through the said order, who had later on moved post arrest bail which had been allowed by the learned Addl. Sessions Judge, Faisalabad vide his order dated 20-7-2010 and the cancellation of the same .is sought through Criminal Miscellaneous No.11383-BC of 2010.

3. The allegations against the respondents as alleged in the said F.I.R. by Muhammad Nawaz complainant/petitioner are that on 21-5-2010 his niece namely. Mst. Fazilat Bibi was abducted by the respondents with the assistance of Mst. Nazia Bibi co-accused for the purpose of subjecting the abductee to illicit intercourse. Thereafter, the abductee was allegedly returned after being subjected to gang rape by the respondents.

4. It has been contended by learned counsel for the petitioner that the offence which has been attributed to the respondents attracts under section 376(2), P.P.C. which falls within the ambit of prohibitory clause and entails capital punishment as such allowing the respondents bail merely on the ground that the police has declared them innocent cannot sustain as the opinion of the police is without any evidence or cogent reason being given by the I.O. for declaring them innocent rather the abductee/prosecutrix who had been gang raped by the respondents had fully supported the prosecution version in her statement recorded before the police and the said version is duly corroborated through medical evidence. In the circumstances, the learned Addl. Sessions Judge, Faisalabad has failed to apprehend the ipse dixit of the police cannot be considered while granting bail to the respondents simply on the opinion of the police which is neither binding on the courts. In this regard reliance has been placed upon Khalida Bibi v. Nadeem Baig (PLD 2009 Supreme Court 440), Mudassar Altaf and another v. The State (2010 SCMR 1861) Muhammad Ahmed (Mahmood Ahmed) and another v. The State (2010 SCMR 660) and Shoukat Ilahi v. Javed Iqbal and others (2010 SCMR 966).

5. On the other hand learned Assistant Prosecutor-General assisted by learned counsel for the respondents submits that the challan has duly been submitted in the court on 5-7-2010 and charge has been framed and two dates have been fixed for recording of prosecution evidence. Further submits that co- accused Mst. Nazia Bibi has been declared innocent by placing her in Column No.2 of the report under section 173 Cr.P.C. It is further submitted that vide police diary No.8 dated 28-6-2010 the police has declared the respondents innocent on the ground that the abductee/ prosecutrix had also previously eloped with the respondent namely Haq Nawaz and being close relative had liking for each others and she had eloped with her own free will and consent and also opined that instead of Zina-bil-jabr, Zina-bil-Raza was found to have been committed with the alleged abductee. Further, it is submitted that intact the medical report shows that the alleged abductee is used to habitually sexual intercourse.

6. It is further contended that the bail once granted can only be withdrawn on the settled principle that the concession of bail has been misused; that the order is perverse and without any reason and the court has exceeded its jurisdiction but in the instant case the same is not applicable. The learned Court below has given well reasoned judgments which needs no interference by this Court. These petitions have no merits, the same be dismissed.

7. Arguments heard, record perused.

8. The allegations against all the respondents are that they allegedly committed gang rape with Mst. Fazilat Bibi niece of the complainant/petitioner after abducting her and thereafter she had been allegedly found lying unconscious near her residence after three days. The learned Additional Sessions Judge, Faisalabad while granting bail in both the cases have given much weight to the opinion of the I.O. in order to grant bail to the respondents and has completely ignored that the prosecutrix/ abductee has fully supported the prosecution version in tooth and nail as well as the medical evidence also shows i that she had sustained injuries and there were marks of violence on her body, two stitched wounds are present on the scalp each measuring 4 cm X 3 cm. Further, there is a blackish brown bruise 12 X 4 cm on the left shoulder, a blackish bruise 2 X 2 cm on the right knee, in the presence of the same, there was sufficient material available on the record to show that the abductee had not eloped with her free will and consent rather, she had been subjected to torture, as is evident from the medical report which cannot be ignored, as such, simply allowing bail on the opinion of the police that it was a ease of elopement could not be considered to be a cogent and well reasoned.

9. In the above circumstances, when the offence falls within the prohibitory clause and sentence is of capital punishment of death, it is a settled principle that in such like cases bail can only be granted if the court finds reasonable ground for believing that the accused has not committed the offence. In the instant case even if the stance of the respondents and the opinion of the I.O. is taken into consideration even then the commission of the offence is established. Moreover, the prosecutrix/ abductee has not only been tortured and injured but she has in categorical terms made a statement before the police that she has been subjected to gang rape by the respondents and the Apex Courts have held that single statement of the prosecutrix/abductee is enough for the conviction of the accused persons.

10. For what has been discussed above, both the above captioned petitions are accepted. Resultantly, the bail granting orders dated 2-7-2010 and 20-7-2010 are set aside and the bail allowed to the respondents is hereby recalled and cancelled. All the respondents, present in the Court are ordered to be taken into custody and -be dealt with in accordance with law.

11. Before parting with this order it is clarified that the observations made above will not prejudice the case of either of the parties during the proceedings of trial. H.B.T./M-6/L Bail Cancelled.