2013 P Cr (PLP)

SAYYED MAZAHAR ALI AKBAR NAQVI, J.

Apprehending their arrest at the hands of the police, through the instant petition, Muhammad Jameel and Sumera, petitioners seek their pre-arrest bail in case F.I.R. No.473 of 2012, dated 16-7-2012, offence under sections 376, 379, P.P.C., registered with Police Station, Hanjarwal, Lahore.

2. Prosecution story, in brief, as contained in the crime report is that about one and half months prior to lodging the crime report, Sumera/petitioner No.2 came to the house of the complainant and took away her daughter namely Anees Zahra aged 14 years with her under the pretext of some work/washing feet, to the house of Jamil/petitioner No.2, who committed zina with her on gun-point. It is mentioned in the crime report that the petitioners also grabbed gold ornaments weighing two and half tolas from the victim under the pretext of getting her abortion done by a doctor.

3. Learned counsel for the petitioners contends the petitioners are innocent and have falsely been roped in the instant case by the complainant against the actual facts and circumstances with mala fides. It is argued that both the petitioners are brother and sister inter se and the story/allegations levelled in the crime report against them do not sound sense. It is argued that though the moral values of the society have gone to very low pith, but even then it is strange enough that a married real sister helps her brother to commit zina with a girl of tender age. It is contended that even otherwise medical evidence in the instant case do not commensurate with the occular account as according to the prosecution's own case, the matter was reported to the police on 16-7-2012 whereas the medical examination of the victim was conducted on 10-7-2012 i.e. even prior to registration of the crime report. Adds that even as per medical certificate of the victim (better copy available on the file at page 18), she was subjected to zina 3 to 4 days ago. Learned counsel for the petitioners while referring report of Forensic Science Agency, Punjab, Lahore, bearing No.10-12 DNA and Serology Department Examination, dated 5-10-2012, submits that following result and conclusion has been mentioned therein:-- "Presumptive testing indicated the presence of seminal material but no spermatozoa could be found on item # 1, 2 and 3". As a matter of fact, learned counsel submits that the dispute over two tolas gold and cash worth Rs.10,000 between the parties, has been culminated into lodging of instant crime report with such a heinous offence/allegation and the petitioners have just been made scapegoat. In such circumstances, learned counsel for the petitioners prayed for grant, of relief prayed for by means of instant petition.

4. On the other hand, learned Deputy Prosecutor-General submits that the petitioners are named in the crime report. It is argued that the victim has fully implicated the petitioners in the instant case through her statement under section 161, Cr.P.C. It is contended that the petitioners were found guilty during the course of investigation. Moreover, it is a pre-arrest bail and the same can be granted sparingly. However, when confronted qua delay/contradiction in the occular and medical account, learned Deputy Prosecutor-General states that the complainant is not aware about the technicalities being illiterate lady.

5. Arguments advanced pro and contra have been heard and available record perused.

6. This Court is conscious of the fact that considerations for grant of pre-arrest bail and post-arrest bail are entirely on different footings, but at the same time this Court cannot lose sight of the fact that the scope of pre-arrest bail has been widened by the august Supreme Court of Pakistan while delivering judgment in the reported case titled Meeran Bux v. The State and another (PLD 1989 SC 347), wherein it has been categorically held that while delivering order with reference to pre-arrest bail, merits of the case can also be touched upon by the Courts for the safe administration of criminal justice. This Court has observed that a very heinous allegation of zina has been levelled in the instant case with the delay of one and half months without rendering any explanation in this regard at all. Even otherwise the complainant present before the Court when confronted stated that in fact the accused have themselves called the trouble as they refused to hand over two tolas gold and cash worth Rs.10,000, and this fact squarely reflects the intent of the complainant qua lodging of the instant case in order to procure/settle the dispute over gold/money. The medical evidence in the case in hand is in conflict with the occular account, which does not support the case of the prosecution in any way. The question arises whether in such circumstances it would be in the fitness of things that the petitioners should be granted extraordinary relief or otherwise, suffice it to say that the accusations levelled in the instant case are against real brother and sister, who even otherwise is having a suckling babe with her, and this aspect do not appeal to reason that she would be instrumental in providing all logistic facilities to her real brother for such a heinous offence.

7. Law of bail is not a static law but is growing all the times moulding itself with the changed situation. Provisions of pre-arrest bail are to be invoked where for some extraneous considerations unfounded charge may be brought against innocent persons for humiliation, unjustified harassment and being disgraced by trumped charges. Reliance in this regard is placed upon the reported case of Dr. Abdul Sattar v. Abdur Rahim and 3 others (1990 PCr.LJ 630). Moreover, it is a settled principle of law that the Court can even look into and evaluate the mala fides from the facts and circumstances of the case, which apparently is oozing in this case from the facts and circumstances discussed above. Respectful reliance in this regard is placed on the ratio decidendi of august Supreme Court of Pakistan in the cases of Ajmal Khan v. Liaqat Hayat and another (PLD 1998 SC 97) and Syed Muhammad Firdaus and others v. The State (2005 SCMR 784). Moreover, liberty of a person is a precious right and the same cannot be curtailed only on the basis of bald allegations. In such circumstances, sending the petitioners behind the bars would not serve any useful purpose for the prosecution.

8. For the foregoing reasons I am inclined to hold that the petitioners have made out a case for their confirmation of pre-arrest bail. Resultantly, the instant petition is accepted and ad interim bail already granted to the petitioners in terms of order dated 28-11-2012 is hereby confirmed subject to their furnishing fresh bail bonds in the sum of Rs.1,00,000 each with one surety each in the like amount to the satisfaction of learned trial Court. MWA/M-370/L Bail confirmed.