PLJ 2013 Cr.C.
(Lahore ) 525
[Multan Bench Multan
[
Present: Shujaat Ali Khan, J.
SHAH NAWAZ alias
CHULLU--Petitioner
versus
STATE and
another--Respondents
Crl. Misc. No.
4720-B of 2012, decided on 20.11.2012.
----S.
376--Punishment for rape--Question of--Whether the provisions of Section 376,
PPC are applicable to the facts and circumstances of the case--To attract
provisions of Section 376, PPC, there should be rape with a woman and to
establish as to whether the rape was committed, penetration is essential but
bare reading of the instant FIR speaks otherwise because it has not been
alleged by the complainant that rape was committed with her rather her case is
that the petitioner tried to commit zina with her,
therefore, the provisions of sections 376, PPC prima facie do not attract to
the facts and circumstances of the case. [P.
527] A
Bail--
----Bail cannot
be refused on the ground that accused remained fugitive from law--Bail cannot
be refused on the ground that he remained fugitive from law. [P. 528] B
Criminal
Procedure Code, 1898 (V of 1898)--
----S.
497(2)--Pakistan Penal Code, (XLV of 1860), Ss. 376/511--Bail, grant
of--Further inquiry--Contention of the complainant that the petitioner is also
involved in other number of criminal cases--Prior to conviction, it is presumed
that every accused is innocent--Despite repeated queries by High Court counsel
for the complainant has failed to establish that the petitioner was ever
convicted in any case registered against him, therefore, he cannot be refused
bail merely on the ground that certain other criminal cases have been
registered against him--Case was of further inquiry--Bail accepted. [P. 528] C
Mr. Muhammad Ramzan Khalid Joiya, Advocate for
Petitioner.
Mr. Hassan Mahmood Tareen, DPG for State.
Mr. Zafar Iqbal Bhatti,
Advocate for Complainant.
Date of hearing:
20.11.2012.
Order
Shahnawaz alias Chullu has sought post arrest bail being an accused of case
FIR No. 293/2011 dated 03.07.2011 registered at Police Station Noor Shah, District Sahiwal in
respect of the offences under Sections 376/511, PPC.
2. The
allegation against the petitioner, in precise, is that on 20.05.2011, he while
armed with pistol alongwith his co-accused, Sohail Ahmad, entered the house of the complainant and tried
to commit zina-bil-jabr with her.
3. Learned
counsel for the petitioner contends that there is a delay of 1« months in
lodging the FIR; that in fact no occurrence, as alleged by the complainant,
took place; that the complainant has already sworn an affidavit to the effect
that Sohail Ahmad, co-accused is innocent; that
though the petitioner remained on physical remand for a considerable period but
no recovery has been effected from him; that the complainant is habitual to
move applications against different persons and then to recover money from
them; that in fact the present FIR has been lodged as counterblast to that of
case FIR No. 363/2011; that the contents of the FIR do not constitute offence
under Section 376, PPC and that since the petitioner was declared innocent by
the police, he did not appear before the Court, therefore, his abscondance is not material.
4. Conversely,
learned DPG, assisted by the learned counsel for the complainant, submits that
the petitioner has recently been arrested in this case on 30.09.2012; that a
pistol has already been recovered from the petitioner; that the petitioner
remained absconder for a considerable period; that no previous enmity has been
shown by the petitioner for his false involvement in this case; that delay in
lodging the FIR stands explained as the FIR was lodged pursuant to an order
passed by the learned Ex-Officio Justice of Peace on the petition filed by the
complainant under Section 22-A/22-B, Cr.P.C. that
number of other criminal cases have been registered against the petitioner;
that he is leader of gang of a group which is defrauding the-innocent citizens
and that the petitioner has been found guilty during the investigation. In
addition to his oral submissions learned counsel for the complainant has relied
upon the case reported as Tariq Bashir and five
others versus The State (PLD 1995 Supreme Court 34).
5. I have heard
the learned counsel for the parties and have also gone through the documents
appended with this petition as well as those produced during the course of
arguments in addition to the case law cited by the learned counsel for the
complainant.
6. Firstly,
taking up the question as to whether the provisions of Section 376, PPC are
applicable to the facts and circumstances of the case, I am of the view that a
perusal of Sections 375 and 376, PPC is inevitable which for convenience of
reference is being reproduced herein below:--
"375.
Rape.--A man is said to commit rape who has sexual
intercourse with a woman under circumstances falling under any of the five
following descriptions,--
(i) against her will;
(ii) without her
consent;
(iii) with her
consent, when the consent has been obtained by putting her in fear of death or
of hurt;
(iv) with her consent, when the man knows that
he is not married to her and that the consent is given because she believes
that the man is another person to whom she is or believes herself to be
married; or
(v) with or without
her consent when she is under sixteen years of age.
376. Punishment
for rape.--(1) Whoever commits rape shall be punished with death or
imprisonment for either description for a term which shall not be less than ten
years or more than twenty five years and shall also be liable to fine."
A bare perusal
of the afore-quoted Sections makes it clear that to attract provisions of
Section 376, PPC, there should be rape with a woman and to establish as to
whether the rape was committed, penetration is essential but bare reading of
the instant FIR speaks otherwise because it has not been alleged by the complainant
that rape was committed with her rather her case is that the petitioner tried
to commit zina with her, therefore, the provisions of
Sections 376, PPC prima facie do not attract to the facts and circumstances of
the case.
7. A glance on
order dated 23.12.2011 passed by the learned Additional Sessions Judge, whereby
the petition for post arrest bail filed by Sohail
Ahmad, co-accused was accepted, brings it to light that the complainant
appeared before the Court and submitted an affidavit to the effect that Sohail Ahmad is innocent. Moreover, she also got recorded
her statement on 23.12.2011 before the learned Additional Sessions Judge,
wherein she stated in unequivocal words that Sohail
Ahmad is not his accused. If the said Sohail Ahmad
was not present at the time of occurrence then entire story narrated by the
complainant in the FIR seems to be somewhat doubtful.
8. It is
interesting to note that according to the allegation contained in the FIR, the
petitioner had been seducing the complainant for zina
for a long period but inaction on the part of the complainant to bring the same
to the notice of the police or anybody else speaks volume on her part.
9. Insofar as
the objection raised by the learned DPG that as the petitioner `remained
absconder for considerable time and is not entitled for grant of bail is
concerned, suffice it to observe when the petitioner otherwise has succeeded to
establish that his case falls under Section 497(2), Cr.P.C.
bail cannot be refused on the ground that he remained fugitive from law.
10. Now coming
to the contention of the complainant that the petitioner is also involved in
other number of criminal cases, I am of the humble opinion that prior to conviction, it is presumed that every accused is innocent.
Insofar as the case in hand is concerned, despite repeated queries by this
Court learned counsel for the complainant has failed to establish that the
petitioner was ever convicted in any case registered against him, therefore, he
cannot be refused bail merely on the ground that certain other criminal cases
have been registered against him.
11. For what has
been discussed above, I have no doubt in my mind to hold that the petitioner
has made out a case for further inquiry into his guilt within the meaning of
Section 497(2), Cr.P.C. Consequently, this petition
is accepted and the petitioner is allowed post arrest bail subject to his
furnishing bail bonds in the sum of
Rs. 5,00,000/- (rupees five lacs only) with one surety in the like amount to the satisfaction of the learned trial Court.
Rs. 5,00,000/- (rupees five lacs only) with one surety in the like amount to the satisfaction of the learned trial Court.
12. Before
parting with this order, it is observed that the observations made in this
order are tentative in nature and the same would have no bearing on the outcome
of the trial of the case.
(A.S.) Bail allowed
