MURTAZA and another vs THE STATE and another

ORDER

SAYYED MAZAHAR ALI AKBAR NAQVI, J.---Through the instant petition, Murtaza and Mst. Shamim Bibi alias Sheemo, petitioners, (both son and mother inter se) have Sought for their post-arrest bail in case F.I.R. No.485, dated 15-8-2010, offence under sections 376, 496-A, P.P.C., registered at Police.

Station Saddar Depalpur, District Okara.

2. Prosecution story, in brief, as per contents of F.I.R., is that one month prior to the registration of the case, Mst. Balqees Bibi, sister of the complainant, was kidnapped/enticed away by the accused/petitioners along with their other co-accused for the purpose of committing zina with her.

3. Learned counsel for the petitioners submits that the petitioners are innocent and have falsely been involved in this case by the complainant and even date and time of occurrence has not been mentioned. Learned counsel vehemently contends that the story narrated in the crime report does not seem credible as whole family has been roped in this case. Learned counsel next contends that even otherwise, Mst. Balqees Bibi, alleged abductee, had sworn affidavit and also made statement before the learned trial Court that she was not abducted by the petitioners and their co-accused rather she was abducted by Bagh Ali and Maryam Bibi and was subjected to rape by only Bagh Ali.

It is argued that no allegation of zina has been levelled by the alleged abductee against the petitioners or any of the other co-accused named in the crime report. Learned counsel urges that in view of the statement made by the alleged abductee, prosecution case becomes one of further inquiry and the reasons advanced by the learned trial Court while rejecting the bail petition, are misuse of judicial powers. Learned counsel vehemently contends that Mst.,,Shamim Bibi alias Sheemo, petitioner No.2, is a lady, therefore, she is entitled to the relief of post-arrest bail in view of 2nd proviso of section 497, Cr. P. C.

4. As against above, learned D.P.-G. Assisted by learned counsel for the complainant has opposed this petition with vehemence mainly on the ground that the petitioners are nominated in the F.I.R.

And case against them is heinous in nature, as such they are not entitled to the concession of bail.

Learned counsel' for the complainant further urges that the reasons advanced by the learned Additional Sessions Judge, Depalpur, are very cogent and the order of the learned trial Court does not invite interference.

5. Arguments advanced pro and contra have been heard. I have also gone through the record available on file.

6. Admittedly the petitioners are nominated in the F.I.R.; however, it is also an admitted fact that there is no mention of date and time of occurrence in the same. I am not inclined to comment upon the contention of learned counsel for the petitioners qua credibility of the story; however, bare perusal of the crime report reveals that whole family has been roped in this case. According to the prosecution, Mst. Balqees, alleged abductee, is the star witness of the occurrence but, as is also depicted in the order of the learned trial Court, she while appearing before the court, in addition to swearing affidavit, also made statement, which reflects that she totally exonerated the petitioners and their other co-accused named in the crime report, rather she alleged that she was kidnapped by Bagh Ali and Mst. Mariam Bibi and was subjected to rape by only Bagh Ali. When no allegation of zina has been levelled by the alleged abductee against any of the accused/petitioners and the fact that Mst. Shamim Bibi alias Sheemo, is woman, the case against the petitioners squarely becomes one of further inquiry into their guilt, which aspect of the case, I must say, has been ignored by the learned trial Court.

7. For the foregoing reasons this Court is persuaded to hold that case against the petitioners is.

Covered under subsection (2) of section 497, Cr.P.C. Resultantly, the instant petition is accepted as a result whereof, both the petitioners are admitted to bail after arrest subject to their furnishing bail bonds in the sum of Rs. 1,00,000 each with one surety each in the like amount to the satisfaction of the learned trial Court.

8. Before parting with this order, this Court has observed that the learned trial Court has given definite findings qua certain aspects of the case. Admittedly, while deciding bail petitions the courts have to see from the facts floating on the record whether case of any of the accused/petitioner falls within the ambit of subsection (2) of section 497, Cr.P.C. Or otherwise.

Superior courts of the country from time-to-time have given guidelines for the subordinate judiciary as far as parameters for grant of post-arrest bail are concerned and in this regard reference can be made to the judgment of the august Supreme Court of Pakistan in the case of Ibrahim v. Hayat Gul and others (1985 SCM R 382). It would be advantageous to reproduce the relevant part of the same, which reads as under:-- "497. When bail may be taken in case of non-bailable offence.--

(1) ..........................................

(2) If it appears to such officer or Court at any stage of the investigation, inquiry or trial, as the case may be, that there are no reasonable grounds for believing that the accused has committed a non-bailable offence, but that there are sufficient grounds for further inquiry into his guilt, the accused shall, pending such inquiry, be released on bail, or, at the discretion of such officer or Court, on the execution by him of a bond without sureties for his appearance as hereinafter provided".

Similar view was affirmed by the august Supreme Court of Pakistan in the cases of Shahzaman and 2 others v. The State and another (PLD 1994 65) and Sikandar A. Karim v. The State (1995 SCM R 387).

9. Admittedly both the petitioners were refused post-arrest bail by the learned trial Court on 19-10- 2010 and till to-date i.e. 3-12-2010; they have suffered the incarceration of being behind the bars for about 2 months and 22 days and this loss cannot be compensated/repaired by any manner whatsoever. In this view of the matter it is deemed appropriate to convey the observations of this Court to the learned trial Court. Office is directed to send a copy of this order to the learned trial court for future guidance and to remain careful in future.