MUHAMMAD SHARIF Versus THE STATE
This is a petition for grant of post-arrest bail in a case registered under section 10/16 of the Offence of Zina (Enforcement of Hudood) Ordinance, 1979, vide F.1.R. No.440, dated 22-9-1995, at Police Station Sadar Arifwala, District Pakpattan Sharif, filed by Muhammad Sharif petitioner.
2. Brief allegations as stated in the F.I.R. by Fazal Ahmad complainant father of Mst. Dani the alleged abductee is that she has been married by him two years ago to Muhammad Siddiq, has been abducted on 12-9-1995 by Muhammad Saghir, his brother Munir Ahmad, Yasin, Rasoolan Bibi, Sughran Bibi, Sultan and Surraya Bibi from his house situated in Chak No.74/EB, Tehsil Arifwala, District Pakpattan Sharif. He further stated that having failed to procure her back through his personal efforts, he lodged the abovementioned F.I.R. During the investigation Mst. Dani was recovered and her statement was recorded under section 164, Cr.P.C. by the Assistant Commissioner/Magistrate 1st Class, Arifwala on 1-11-1995, wherein she stated that while going towards her Dera, she was intercepted by Muhammad Saghir co-accused, who by force put her in a car which was sped away by the petitioner. She was taken to a Dera at Gujrat and kept in a house of Zahoor Ilahi co-accused where Saghir committed Zina bil-Jabr with her. She also stated that she was taken to Gujrat Kutchery and forced to thumb-mark on some blank papers. She remained there for two months and Saghir accused repeatedly committed Zina-bil-Jabr with her. On 31-10-1995 father of Saghir accused came there and brought her to Chak No.68/EB and she was handed over to Sharif Doghar, 'who produced her before the police and then she was taken in the Court of learned Assistant Commissioner, who recorded her statement under section 164, Cr.P.C.
3. Learned counsel for the petitioner contends that neither the petitioner is named in the F.I.R. nor any act of commission of Zina is alleged against him. His role according to the prosecution is that he drove the car wherein she was seated by Muhammad Saghir accused.
4. Learned counsel for the complainant on the other hand stated that conduct of the accused after the occurrence disentitled him to the grant of bail as he alongwith Muhammad Munir alias Bhutto brother of Muhammad Saghir co accused and others attacked on Fazal Ahmad for getting the abovementioned case registered against them. Many injuries were caused to the complainant party in the said occurrence and the matter was reported to Police Station Arifwala City regarding this occurrence on 26-9-1995 by Muhammad Siddiq nephew of Fazal Ahmad vide F.I.R. No.302/95 under section 377-F(iv)/337-F(ii)/ 337-A(i)/148/149, P.P.C. It was alleged in the said F.I.R. that while raising Lalkara the accused instigated their companions that complainant be taught a lesson for having got a case registered under Hudood Ordinance against them and attacked with dagger blows etc., as a result of which Fazal fell down on the ground and accused disappeared from the spot thereafter. They are still threatening the complainant party and case is still under investigation. The challan of the present case F.I.R. No.440/95 has been sent to the Court where according to the learned counsel for the complainant and Muhammad Ismail, A.S.-I., who brought the record, trial has commenced. Order, dated 14-2-1996 passed by the learned Additional Sessions Judge, Arifwala, whereby the bail application of the petitioner was rejected recently reads as under (not placed on record by petitioner):--
..The present application has been repeated on solitary ground that the challan has not been submitted so far.. Police file however, shows that the challan was submitted by S.H.O., Saddar, Arifwala on 26-11-1995. It was forwarded by D.S.P. on 5-12-1995. As per report, dated 7-2-1996, made by District Attorney, Pakpattan, incomplete challan was directed to be sent to the Court Surprisingly the file is still lying with the S.H.O. and has not been submitted to the Court of Illaqa Magistrate. This tendency on the part of the local police reflects a sorry state of affairs in the submission of challan providing a ground to the criminals for moving repeated bail applications. After due scrutiny by the concerned agency there is no justification to keep the record in personal custody instead of submitting the same in the Court of Illaqa Magistrate. Copy of this order be sent to the S.P., Pakpattan Sharif for information and necessary action."
5. In view of the above learned counsel for the complainant submits that the release of the petitioner at this stage is likely to effect the prosecution case in which the evidence is likely to be recorded during the next few days.
6. I have heard the learned counsel for the parties and have perused the record. No doubt the petitioner is not named in the F.I.R. but he has been involved by Mst. Dani the material prosecution witness when her statement was recorded under section 164, Cr.P.C. on 1-11-1995 and subsequently her statement was recorded on the same date under section 161, Cr.P.C. The petitioner is attributed role to this extent that he drove the car and taken her to Gujrat alongwith Muhammad Saghir co-accused, who committed Zina-bil-Jabr with Mst. Dani repeatedly. The contention of the learned counsel for the petitioner that the petitioner has not committed Zina with Mst. Dani is also correct. However, the involvement of the petitioner is based on the evidence of the prosecutrix alone, who has not been examined by the prosecution as yet. The conduct of the petitioner indicates that he is a desperate criminal who has attacked on the father of the prosecutrix on 26-9-1995 after four days of the first occurrence and prior to his arrest. In case he is released on bail at this stage he is likely to temper with the prosecution evidence which is yet to be recorded.
7. Learned counsel for the petitioner relying upon Lal Bux and 2 others v. The State 1979 PCr. LJ 915 submits that involvement of the petitioner in another case does not disentitle him from the grant of bail. The aforesaid case relates to the offence under section 156(1), Customs Act, 1969 and the pendency of a previous case against him was urged as a ground by the complainant for dismissal of his application and in that context it was observed in the said judgment that the petitioner being already involved in smuggling activities, adjudication proceedings resulting in confiscation of vehicle allegedly owned by him and proceedings being still pending in Criminal Court held by itself no consideration for refusal of bail to the petitioner. The facts of that case are entirely different from those which are in the present case The petitioner in Order to deter the complainant has attacked him and caused injuries to him and others. In case the petitioner is released on bail at this stage he is likely to terrorise to Mst. Dani and other prosecution witnesses. It will not be in the interest of justice to release the accused on bail at this stage as the challan has already been submitted in Court and the accused has already used his influences regarding delay in submission of challan to trial Court.
8. In view of the above, I am not inclined to release the petitioner on bail at this stag. Since the challan as stated by the Police Officer is pending in the Court of Mr. Zia-ur-Rehman Khan, Additional Sessions Judge, Arifwala, he is directed to conclude the trial of the case expeditiously within a period of three months from today.
9. However, the petitioner may apply for grant of bail after the evidence of public witnesses has been recorded by the trial Court. With this observation this petition is dismissed.
N.H.Q./M-70/L Bail refused