Peer SAEED NAWAZ CHEEMA vs STATE, etc
The petitioner sought post-arrest bail in case F.I.R. No. 399 dated 14.8.2012 registered under Sections 376 and 5060 of the Pakistan Penal Code 1860 at Police Station Shahzad Town, Islamabad, on allegations of forcibly committing Zina at pistol point, taking nude pictures and videos, and criminal intimidation. The core legal question was whether the petitioner made out a case for post-arrest bail given the heinous nature of the offence, specific nomination in the F.I.R., and recovery of incriminating material. The Islamabad High Court dismissed the bail petition, holding that the offence falls within the prohibitory clause of Section 497 of the Code of Criminal Procedure 1898, that the petitioner was specifically nominated with a heinous role, and that the prosecution had collected sufficient incriminating evidence including recoveries. The court laid down the principle that in offences involving the honour and modesty of women, delay in lodging the F.I.R. is often justifiable due to social contemplation, and that medical evidence is merely supportive whereas ocular account holds primary importance at the bail stage.
- Whether delay in lodging an F.I.R. for an offence involving the modesty of a woman can be justified by the need for social contemplation?
- Does an offence under Section 376 of the Pakistan Penal Code fall within the prohibitory clause of Section 497 of the Code of Criminal Procedure?
- Can bail be granted in a heinous offence where the accused is specifically nominated and incriminating recoveries are made?
- What is the evidentiary value of medical examination versus ocular testimony at the bail stage?
- Section 376, Pakistan Penal Code 1860
- Section 5060, Pakistan Penal Code 1860
- Section 497, Code of Criminal Procedure 1898
- Section 161, Code of Criminal Procedure 1898
ORDER
Petitioner Peer Saeed Nawaz Cheema s/o Muhammad Nawaz Cheema seeks bail after arrest in case F.I.R. No 399 dated 14.8.2012, registered u/Ss. 376/5060, P.P.C. with Police Station Shahzad Town, Islamabad.
2. Allegation against the petitioner, in brief, is that on 15.07.2012 at about 10:00 a.m. he called complainant Mst Shabnam Saeed to his house and on pistol point forcibly committed Zina with her.
The Petitioner also took her nude pictures and video through mobile phone. He also hurled intimidation to kill her and her husband, hence the petitioner was booked in the instant case.
3. Learned counsel for the petitioner after reading the contents of F.I.R. contended that there is a delay of one month in lodging the F.I.R; that when the complainant was produced for medication examination, she refused her medical examination; that there is no direct or indirect evidence against the petitioner; that there was no marks of violence upon the body of the complainant/victim; that the husband of the complainant as well as the petitioner were friends and had joint business of sale and purchase the cars; that the complainant alleged only one mobile phone in the F.I.R; whereas during investigation two mobile phones were recovered from the possession of the petitioner; that the complainant and her husband were tenants of the petitioner and the petitioner expelled them from his house, therefore, he has been involved in this case. It is prayed that the petitioner be released on bail. In support of his contentions, the learned counsel has relied upon Waqas Vs. State and another (PLJ 2010 Cr.0 Lahore 907).
4. Conversely, learned Deputy Attorney-General contended that the petitioner was arrested on 14.08.2012 and after two day a pistol was recovered from his possession; that on 25.8.2012 supplementary statement of the complainant was recorded wherein she duly identified the mobile phone as well as her nude photographs and video, which is supporting version of the complainant; that the offence under Section 376, P.P.C. falls within the prohibitory of Section 497, Cr.P.C., therefore, the petitioner is not entitled to the concession of bail.
5. Heard arguments anxiously and studied the record minutely.
6. The petitioner is specifically nominated in the F.I.R. with specific role. As far as the delay in lodging the F.I.R. is concerned plausible reason has been explained in the F.I.R. itself for such delay. Suffice it to say that in such like cases since dignity, respect, honour and modesty of women is involved, therefore, the matter is reported to the police after due contemplation. The offence under Section 376, P.P.C. falls within the prohibitory clause of Section 497, Cr.P.C. In such like cases, refusal is a rule and acceptance is an exception. Learned counsel for the petitioner has not been able to point out any special feature of the case which may bring this case in any of the exceptions. The complainant herself confirmed the contents of F.I.R. when she made statement under Section 161, Cr.P.C. before the police and fully implicated the petitioner in the commission of offence that he committed zina forcibly with her. It cannot be believed that a household lady would put her honour and dignity as well as that of her family at stake for falsely implicating the petitioner/accused in the case.
7. As regards non-examination of the petitioner is concerned, it is observed that medical evidence is mere piece of evidence and it is ocular version which is required to be taken into consideration.
Even otherwise, the F.I.R. was got lodged after one month of the occurrence and at that occasion there was no chance of detection of semen. It would not be out of context to mention that the complainant was a married women and during this period she would have been performing her marital obligations. The petitioner is involved in a heinous, offence. It is highhandedness on the part of the petitioner that on one hand he committed Zina with the complainant by show of force and on the other hand he prepared her nude photographs as well as video through mobile phone.
There is nothing on record to suggest that the involvement of the petitioner is product of mala fide or on the part of the complainant or police. Recovery of mobile phones as well as pistol has been effected from the petitioner. The prosecution is equipped with sufficient incriminating material to connect the petitioner with the commission of heinous offence. During investigation the petitioner was found guilty of the offence, therefore, no case of bail is made out.
8. The net result that flows from the above discussion is that the petitioner is not entitled to concession of bail. Consequently, this petition is dismissed.
9. It is made clear that the observations made by this Court during the recording of this order are only tentative in nature and would in no way prejudice the mind of the trial Court at the time of final stage of the case.