Jamal Shah And 2 Other vs The State And Another
The petitioners sought post-arrest bail in a private complaint under Sections 365-B, 109, and 376 of the Pakistan Penal Code 1860, arising from allegations of abduction and zina. The core legal question was whether the petitioners were entitled to post-arrest bail given the heinous nature of the offences, discrepancies in the nomination of accused persons, a negative DNA report, and the principle of consistency with co-accused. The Lahore High Court dismissed the petition, holding that the offence was heinous, the case of the petitioners was distinguishable from co-accused who were merely abettors, and the negative DNA report did not warrant the grant of bail at this stage. The court established that accused facing serious allegations in non-bailable offences, supported by victim statements in a private complaint, do not make out a case for post-arrest bail.
- Whether an accused facing charges under Sections 365-B and 376 of the Pakistan Penal Code 1860 is entitled to post-arrest bail when named in a private complaint with specific allegations?
- Does a negative DNA report automatically entitle an accused to post-arrest bail in a heinous offence?
- Can the principle of consistency be applied to grant bail to petitioners whose roles are distinguishable from co-accused who were only charged as abettors?
- Section 109, Pakistan Penal Code 1860
- Section 365-B, Pakistan Penal Code 1860
- Section 376, Pakistan Penal Code 1860
ORDER
KH. IMTIAZ AHMAD, J. - Petitioners seek their post-arrest bail in Private Complaint under Sections 365-B, 109, 376, P.P.C., Police Station Talambah Tehsil Mian Channu, District Khanewal.
2. The relevant facts for the disposal of this case are that on 19.2.2010 father of complainant got registered the case bearing F.I.R. No. 50-2010 under Sections 365-B, 109, P.P.C. Police Station Tulambah, District Khanewal for the abduction of his daughter Mst. Saima Bashir. However, the accused were not arrested in the said case and their arrest was kept pending and during investigation of the said case when the abductee found that the police was not arresting the accused, she filed Private complaint wherein the accused were summoned to face the trial and after their surrender before the Court, in view of case-law captioned "Luqman Ali v. Hazoo and others" (2010 SCM R 611), they moved for their pre-arrest bail before the learned Trial Court which was dismissed and they were sent to judicial lock up and then they applied for post-arrest bail which was dismissed and then they had come to this Court. It is mentioned here that specific allegation of commission of zina is levelled against the petitioners.
3. Learned counsel for the petitioners contended that in the F.I.R. Only two persons namely Jamal Shah, Waheed Shah were nominated and two were unknown persons while in the complaint 5 persons along with two unknown persons were mentioned.. He contended that Khurshid Shah and Waheed Shah had been admitted to bail by the learned Trial Court and the petitioners are also entitled for their bail on the principle of consistency. He further contended that report of D.N.A. Is negative.
4. Learned counsel for complainant and learned D.P.G. Opposed the petition and contended that co-accused who had been admitted to bail were only involved under Section 109, P.P.C. Being the abettors but the case of present petitioners is distinguishable. They further contended that it was the abductee herself who disclosed the names of real culprits. They further contended that mere fact that D.N.A. Report is negative does not affect the prosecution case and placed reliance upon "Aman Ullah v. The State" (PLD 2009 SC 542).
5. Arguments heard. Record perused.
6. Admittedly, the offence allegedly is heinous one wherein the parties there docs riot appear any enmity for false implication. The record of the police also shows that police did not arrest the accused and kept on prolonging the matter, though, the complainant even knocked the door of ex-officio Justice of Peace for issuance of direction for the arrest of accused but no order was, passed by the said Court also. In such eventuality, the victim herself filed a private complaint. The offences are non-bailable and after going through the record and statements of witnesses no case for bail is made out. Hence this petition has no force and the same stands dismissed.