UMAR HASSAN and another vs THE STATE and another
This matter concerns a petition for post-arrest bail filed by two accused persons, Umar Hassan and Shahid Hassan, who were charged in an F.I.R. involving allegations of physical assault and sexual offences. The core legal question was whether the petitioners were entitled to bail given the nature of the injuries, the deletion of the sexual offence charge during investigation, and the alleged motive of false implication due to prior family enmity. The Court held that the petitioners were entitled to bail. It observed that the injury attributed to one petitioner did not fall within the prohibitory clause of the relevant statute, and the other petitioner was only accused of causing simple injuries. Furthermore, the Court noted that the offence of rape (zina) had been deleted by the investigating officer, and there was a plausible argument of false implication arising from a pre-existing family dispute involving the complainant's marriage and the incarceration of her relatives. The Court established that where the prohibitory clause is not attracted and the prosecution's case appears potentially motivated by ulterior motives, the concession of bail is appropriate.
- Does an injury declared as 'Ghayr Jaifah Hashimah' fall within the prohibitory clause for the purposes of bail?
- Can bail be granted when the offence of rape (zina) has been deleted by the investigating officer during the investigation?
- Is the potential for false implication due to prior family enmity a valid ground for granting post-arrest bail?
- Section 337 F(vi), Pakistan Penal Code 1860
- Section 148, Pakistan Penal Code 1860
- Section 149, Pakistan Penal Code 1860
- Section 376, Pakistan Penal Code 1860
ORDER
' MALIK SAEED EJAZ, J.---Umar Hassan and Shahid Hassan petitioners have sought post-arrest bail in case F.I.R. No,66, registered at Police Station City Mailsi District Vehari, on 22-2-2008, for offences under sections 337 F(vi) 148/149, P. P . C .
2. According to F.I.R, on the fateful day i.e, on 24-1-2008 at about 7-00 p.m. The complainant was informed by Abdul Rehman, her tenant, that the petitioners along with other co-accused, who are relatives of the complainant, were taking possession forcibily on her land. The complainant reached at the spot and asked the petitioners not to plough her land. But Umar Hassan-petitioner while extending threats said to his companions to catch hold of the complainant. Thereupon Saghir gave a Sota blow on the left leg of complainant Umar Hassan gave Sota blow on the left hand of the complainant. Imran, Abid, Shahid Hassan-petitioner gave fists blow to complainant.
After receiving injuries the complainant fell down. Then Shahid Hassan-petitioner caught hold of her hairs and along with Umar Hassan took the complainant in the nearby sugarcane crop and both of them committed zina with her.
3. Learned counsel for the petitioners submits that though the petitioners are named in the F.I.R. But they have been falsely involved in this case, even otherwise the injury attributed to Umar Hassan petitioner has been declared "Ghayr Jaifah Hashimah", which does not fall within the prohibitory clause. As far as allegation against Shahid Hassan-petitioner is concerned, fist blows are attributed to him but no serious injury is assigned to him.
' Further submits that allegations of abduction and commission of zina have been levelled against both the petitioners but during investigation offence under section 376, P.P.C. Has been deleted; that Umar Hassan-petitioner is real brother of the husband of complainant and Shahid petitioner is also closely related with her; that the petitioners are behind the bars since 9-4-2008 and as per medico legal report of the complainant, she was in menstruation period at the time of examination, thus, there was no question to commit zina with her in the said situation; that the complainant had contracted marriage with Aziz Shah, whose father and uncle Nazar Hassan were involved in the murder case of earlier husband of the complainant, who were awarded imprisonment for life in that case, as such Mst. Haleema/complainant has involved the petitioners in this case with a view to pressurize them for release of her father in law and his brother from that case. In these circumstances, the petitioners are entitled to bail.
4. On the other hand, learned D.P.-G. Assisted by the learned counsel for the complainant contends that pre-arrest bail of both the petitioners has already been dismissed by this Court vide order dated 8-4-2008; that the complainant has also received fracture on her arm , which injury is attributed to Umar Hassan-petitioner; that allegations of zina and abduction have also been levelled against both the petitioners, which are supported by the witnesses cited of the F.I.R, as stated the petitioner did not deseve the concession of bail.
5. I have heard the learned counsel for the parties and gone through the record.
6. Admittedly both the petitioners are nominated in the F.I.R but injury attributed to Umar Hassan has been declared as "Ghayr Jaifah Hashimah". Which does not attract the provisions of prohibitory clause. As far as allegation against Shahid petitioner is concerned, he caused injuries by inflicting fist blows and as per medico-legal report no fracture or any serious injury resulting fracture has been caused to the complainant. So far as the allegation of commission of zina with the complainant by both the petitioners is concerned, offence under section 376, P.P.C. Has been deleted during investigation by the Investigating Officer and this fact has been verified by the learned counsel appearing on behalf of the State as well as by the learned counsel for the complainant. Admittedly father and uncle of Aziz Shah (second husband of Mst. Haleema) had murdered earlier husband of Mst. Haleema/complainant and for that reason they were sentenced to imprisonment for life. After the said murder Mst. Haleema has contracted marriage with Aziz Shah. Meaning thereby she has all the sympathies for the father and uncle of her second husband Aziz Shah Since Umar Hassan petitioner is real brother of first husband of Mst. Haleema, therefore, false involvement of the petitioners in the instant case cannot be ruled out. In these circumstances, I am inclined to accept this petition and admit the petitioners to bail, subject to furnishing bail bond in the sum of Rupees Two Lacs (Rs,2,00,000) each, with one surety each, in the like amount, to the satisfaction of the trial Court.
Cited by 1 case
- SHARAFAT ALI Versus State 2018 PCrLJN 141