Zafar Iqbal And Other vs The State And Another
This criminal matter arises from a petition for post-arrest bail filed by Zafar Iqbal, Muhammad Sarfraz, and Shahid Iqbal alias Shehzad in relation to F.I.R. No. 285 registered at Police Station Burjwala, District Sahiwal, under Section 354, Section 337-L(ii), and previously Section 354-A of the Pakistan Penal Code. The core legal question concerned whether the petitioners were entitled to post-arrest bail given the nature of the allegations and the applicability of the statutory offences. The Lahore High Court held that since the challan did not contain Section 354-A, the victim's statement lacked allegations of being denuded in public, Section 354 was bailable, and Section 337-L(ii) fell outside the prohibitory clause of Section 497 of the Code of Criminal Procedure, the petitioners were entitled to bail. The court laid down the principle that a case cannot be stretched in favour of either the accused or the prosecution, and the determination of whether Section 354-A applies is a matter for the trial court after recording evidence.
- Whether an offence not falling within the prohibitory clause of Section 497 of the Code of Criminal Procedure entitles the accused to bail as a matter of general rule?
- Can the court at the bail stage determine the applicability of an offence subsequently deleted in the challan without recording evidence?
- Whether Section 354 of the Pakistan Penal Code is bailable?
- Section 354, Pakistan Penal Code 1860
- Section 337-L(ii), Pakistan Penal Code 1860
- Section 354-A, Pakistan Penal Code 1860
- Section 497, Code of Criminal Procedure 1898
ORDER
MUHAMMAD FARRUKH MAHMUD, J.- Zafar Iqbal, Muhammad Sarfraz and Shahid Iqbal alias Shehzad petitioners haye sought their post-arrest bail in case F.I.R. No. 285 registered at Police Station, Burjwala, District Sahiwal on 19.9.2001 for an offence under Section 354, PPC. Subsequently, offence under Section 337-L(ii), PPC was also added. Meanwhile, Section 354-A, PPC was added and deleted.
2. According to the story as given in the F.I.R. Mst. Naziran Bibi, unmarried sister of the complainant was dragged by the petitioners who were raising lalkaras that they will denude her in public and will commit rape with her. At that time the petitioner Zafar Iqbal was allegedly armed with a dagger while Sarfraz petitioner was armed with iron rod. It is further stated that while the sister of the complainant was being dragged, her shirt was torn and her breast was exposed. When the complainant tried to intervene, the accused petitioner threatened with life and thereafter Zafar Iqbal petitioner with his dagger cut the string of Mst. Naziran, threw away her Shalwar and continued dragging Mst. Naziran for a distance of four acres. Due to dragging Mst. Naziran received injuries on her person. It was further added that Mst. Naziran was dragged by the petitioners to their houses but they could not succeed in committing rape with her as the inmates of the village had assembled there. The motive as given in the F.I.R, was that the petitioner suspected that Muhammad Asif brother of the complainant had illicit relations with one Mst. Shazia, niece of the petitioners and an altercation had taken place with the afore-referred Asif on that score.
3. The learned counsel for the petitioners has argued that Section 354, PPC is bailable while Section 337-L(ii), PPC did not attract the prohibitory clause of Section 497, Cr.P.C. On the other had, the learned counsel for the complainant and the learned counsel for the State have vehemently argued that the petitioners had committed a heinous offence not only against a person but against the society and did not deserve the concession of bail. It has been argued that during investigation Section 354-A, PPC was added by the investigating DSP but the same was subsequently deleted due to the mala i.e of the police officials who were bent upon to help the petitioners from the very beginning. It has also been argued that despite the fact that Mst. Naziran was examined on the date of occurrence and the medical examination revealed injuries on the person of Mst. Naziran yet the case was not registered by the police for about three months and the case was finally registered after an order was obtained by the complainant from this Court, It has been lastly argued that the contents of the F.I.R, clearly show commission of offence under Section 354-A, PPC, and the Court was not bound by the opinion of the police.
4. I have heard the learned counsel for the parties at length and have also perused the record of the case. Admittedly, the challan of the case has been submitted before the learned Trial Court and the same does not contain the provisions of Section 354-A, PPC. Statement of Mst. Naziran who is a victim was recorded by the police and according to her statement she was dragged by the petitioners but there is no allegation that the string of her Shalwar was cut or she was denuded in public. It was laid down in the case of Muhammad Amir v. The State (PLD 1972 SC 277) that the case cannot be stretched in favour of the accused or in favour of the prosecution. In these circumstances whether any offence under Section 354-A, PPC was committed or not would be determined by the learned Trial Court after recording of some evidence. Out of the remaining offences Section 354, PPC is bailable and Section 337-L(ii), PPC is not punishable with ten years or more. Resultantly, I admit the petitioners to bail subject to their furnishing bail bonds in the sum of Rs. 1,00,000/- (Rupees one hundred thousand only) each with one surety each in the like amount to the satisfaction of the learned Trial Court.