PLJ 2013 Cr.C. (Lahore)
256
Present: Abdul
Sami Khan, J.
MUHAMMAD HANIF
and 2 others--Petitioners
versus
STATE and
another--Respondents
Crl. Misc. No.
18778-B of 2012, decided on 14.1.2013.
Criminal
Procedure Code, 1898 (V of 1898)--
----S.
497(2)--Pakistan Penal Code, (XLV of 1860), Ss. 365-B & 376--Bail, grant
of--Further inquiry--Delay in FIR--During the investigation the alleged abductee had got recorded her statement to the
investigating officer u/S. 161, Cr.P.C. but
astonishingly she had not leveled allegation of committing Zina-bil-Jabr
against the petitioners--At one stage the alleged abductee
has moved a petition u/Ss. 22-A, 22-B, Cr.P.C. before
the Justice of Peace wherein she has categorically mentioned that she has
contracted marriage with petitioner of her own free will and volition and she
was being harassed by police at the behest of her father and her
brothers--Alleged abductee kept on changing her stances
at different stages and at different forums and such divergent stands taken by
her has cast serious doubt in the prosecution's story set forth in the
FIR--Complainant had spread the net wide and entangled three persons of a
family because petitioner No. 1 was father and petitioners No. 2 and 3 were his
real sons--It does not appeal to a prudent mind that a father would commit Zina-bil-Jabr with a girl alongwith
his own sons and especially with the wife of his son--If this is not enough
petitioner No. 3 was a school going student of twelve and a half years age--To
substantiate his arguments counsel for the petitioner produced his School
Leaving Certificate as well as his School Attending Sheet to establish his plea
of alibi which have been brought on the record of this case--Opinion of the
police is not binding upon the Courts of law to be act upon in stricto senso because the Court
has to see every case with the touch stone of law and the facts and
circumstances of the case--Similarly submission of challan
in the Court was also not a ground to refuse bail to accused persons when
otherwise they had made out a good case for grant of their post-arrest bail. [Pp. 258 & 259] A, B & C
Mr. Zaheer-ul-Hassan Zahoor, Advocate for Petitioner.
Mr. Nisar Ahmad Virk, Deputy
Prosecutor-General for State.
Syed Shahbaz Bokhari, Advocate for
Complainant.
Date of hearing:
14.1.2013.
Order
Through this
petition under Section 497, Cr.P.C. Muhammad Hanif, Gulbadan and Yawar Khan petitioners have sought bail after arrest in case
FIR No. 1473/12, dated 18.10.2012 registered at Police Station Factory Area,
Lahore in respect of offences under Sections 365-B and 376, PPC.
2. The learned counsel for the petitioners
contends that the petitioners have been roped in this false case by the
complainant with mala fide intention and ulterior motives after joining hands
with the local police. The petitioners are not named in the FIR and they have
been introduced in this case through a supplementary statement recorded by the
complainant on 19.10.2012. In the supplementary statement got recorded by the
complainant he has not mentioned his source of information that how he came to
know about the involvement of the present petitioners in this case. The
complainant and alleged abductee have involved three
persons of a family in this case and it is unbelievable that a father and two
real sons would commit Zina-bil-Jabr with a girl. The
true fact of this case is that the alleged abductee
has contracted marriage with Petitioner No. 2 on 14.10.2012. After the alleged
abduction the abductee filed a petition before the
learned Justice of Peace stating therein that due to her marriage she is being
harassed by her father. The alleged abductee kept on
changing her versions at different occasions which brings the case of the
petitioners under the ambit of further inquiry. The petitioners are previous
non-convicts, the investigation of this case is complete, the petitioners are
not required by the police for further investigation, thus,
their continuous incarceration in jail would not serve any beneficial purpose
at this stage. Petitioner No. 3 is a minor, aged about twelve and a half years
and he is school going boy cannot even think about commission of such like
offence. The learned counsel for the petitioner produced original School
Leaving Certificate and the copy of School Attending Sheet to substantiate his
argument.
3. On the other hand the learned Deputy
Prosecutor-General assisted by the learned counsel for the complainant after
going through the record submits that there is absolutely no mala fide on the
part of the raiding complainant to falsely involved
the petitioners in this case. The prosecution witnesses, including the abductee, in their statements recorded under Section 161, Cr.P.C. duly involve the petitioners in this case. The
offence with which the petitioners are charged falls under the prohibitory
clause of Section 497, Cr.P.C. The supplementary
statement was got recorded by the complainant on the subsequent day of lodging
of the FIR wherein the petitioners have been nominated. The abductee
has got recorded her statement under Section 164, Cr.P.C.
wherein she has levelled specific allegation of Zina-bil-Jabr against the peti
