BAHADUR HILAL Versus MUKAMAL KHAN

ORDER

Heard

2. A case under section 10/ 11 of the Offence of Zina (Enforcement of Hudood) Ordinance, 1997 read with section 342/114/109/34, P.P.C. is registered against the petitioner and other Police Station Saddar Chakwal on the report of Mst. Musarrat Naseem prosecutrix for an occurrence which took place on 27-9-1997.

3. According to her statement, she got angry with her mother and left her house in order to go to the house of her maternal-aunt. She reached Adda Chakora at about 5-00 p.m. while on way to the house of her maternal-aunt. Meanwhile a Suzuki Van No.RIL-8165, driven by Jamshed, a co-accused of the petitioner arrived there from Chakwal. The passengers alighted from the van and after it became empty, the prosecutix asked the driver to take her to Chakwal. The driver asked her to board the van and to occupy the rear seat. On reaching near Odharwal Chowk, the driver stopped the van and asked the prosecutrix to come over to the seat by his side. She accordingly occupied the seat next to the driver's seat. On reaching to Sargojra Adda, she asked the driver to drop her but instead, she was taken to the house of Muhammad Shakeel, co-accused situated in Mohallah Line Park Nishat Colony. From there, she was taken by the aforesaid Jamshed and Shakeel to a deserted place and was subjected to Zina-bil- Jabr by both of them. From there, she was taken to the house of Rizwan laved, another co-accused of the petitioner in Mohallah Qutab Abad. The aforesaid Rizwan was also invited by the aforesaid co-accused to accompany them in the Suzuki van. He accordingly boarded the Suzuki van alongwith the present petitioner. All four of them took her to the abovesaid deserted place where she was subjected to Zina-bil-Jabr by Rizwan Javed and the petitioner put his hand over her mouth so that she may not raise the noise. The victim was accordingly made silent by the petitioner when his co-accused Rizwan committed Zina-bil- Jabr with her. Thereafter, all four of them came back in the Baithak of Shakeel where she begged them to be released. She was again taken out and left near

Shah Zeb graveyard from where she reached the house.

4. Learned counsel for the petitioner submitted that since there was no allegation of Zina against the petitioner, therefore, the offence would not fall within the schedule of the Anti-Terrorism Act, 1997 and as such, Special Court was not competent to deal with the matter; that the petitioner was involved falsely in the case as the father of the petitioner who was serving as Inspector had recently retired and had some rivalry with the Investigating Officer; that there was delay in filing of the F.I.R. which made the story intrinsically doubtful; and that the prosecutrix made a statement under section 164, Cr.P.C. in which she did not specifically name the petitioner to have committed the occurrence.

5. In the light of the above submissions, learned counsel for the petitioner contended that since the facts of the case did not attract the provisions contained in the Anti-Terrorism Act, 1997 nor it could be considered a scheduled offence, therefore, the petitioner was entitled to bail.

6. Learned counsel for the State opposed the bail application on the ground that the petitioner is named in the F.I.R. and has been assigned a specific role as he had accompanied the principal accused at the time of commission of Zina-bil-Jabr with the prosecutrix. In this regard, it was contended that the petitioner put his hand on the mouth of the victim to her silent. It was, therefore, urged that the petitioner was equally to be blamed for facilitating the commission of Zina-bil-Jabr by his co-accused, may be through a conspiracy or abetment. The offences mentioned in the F.I.R., therefore, allegedly clearly fall within the ambit of schedule of the Anti-Terrorism Act, 1997. Lastly , it was contended that the provisions contained in subsection (3) of section 30 of the Act ibid excludes the application of the provisions of section 496/497/498, Cr.P.C. and as such, no other Court shall have the jurisdiction to deal with the bail matter.

7. We have considered the submissions made at the Bar from both sides. It will not be possible to enter into the deeper appreciation regarding the merits of the case lest it may prejudice the trial. It is enough to say that the Special Court constituted under the Anti-Terrorism Act, 1997 has taken cognizance of the matter. The petitioner is named in the F.I.R. and had played a specific role in silencing the victim by putting his hand over her mouth when his co-accused committed the offence of Zina-bil-Jabr. It is true that the name of the petitioner is not mentioned in the statement of the victim under section 164, Cr.P.C. but she has clearly mentioned that one of the four accused had put his hand over her mouth while the other had committed Zina-bil-Jabr with her. The name of the fourth person as pointed out above has been mentioned in the F.I.R. It is, therefore, obvious that the non-mentioning of the name in the statement under section 164, Cr.P.C. would not be fatal at this stage so as to create any ground for bail for such an heinous offence of gang-rape. Even otherwise, the provisions relating to bail contained in section 497, Cr.P.C. have been specifically excluded by section 30(3) of the Anti-Terrorism Act, 1997. The intention of the Legislature is quite clear that once the case has been taken cognizance by the Special Court for an offence falling within the schedule of the Act, no Court other than the Special Court shall have power or jurisdiction to grant ball. As such, the aforesaid provision of the Code of Criminal Procedure cannot be invoked at this stage nor the petitioner deserves to be released on bail on the merits of the case.

8. The petition is, therefore, dismissed.

H.B.T./I-45/L Petition dismissed.