2011 Y L R 1921
[Quetta]
Before Muhammad Noor Meskanzai, J
ABDUL QADOOS alias PEHLWAN ---Petitioner
Versus
THE STATE ---Respondent
Criminal Bail Application No.236 of 2009, decided on 17th November, 20 09.
Criminal Procedure Code (V of 1898) ---
----S. 497(2) ---Penal Code (XLV of 1860), Ss.376 & 354 ---Rape, assault or criminal force to
woman with intent to outrage her modesty ---Bail, grant of ---Further inquiry ---Trial Court
dealt with the matter mech anically and had passed order without consulting the record ---No
plausible explanation had been offered by the prosecution regarding 3 hours' delay in lodging
of F.I.R. ---Deliberations and consultations could not be ruled out, in circumstances ---Clear
allegation of an attempt to commit forcible Zina had been made in the F.I.R., but
complainant/ victim had not stated that her clothes were stripped, removed, torn, so without
going deep into the contents of F.I.R., ingredients of Ss.376 & 354, P.P.C., were mi ssing, in
the case ---One of prosecution witnesses had stated that he entered the room along with other
prosecution witnesses and saved the complainant from the clutches of accused, but other
prosecution witnesses did not state so ---None of the said witness es had stated that
complainant was being beaten and they all saved the complainant from the clutches of
accused ---Prosecution seemed to have concealed the real position; and situation might be
somewhat different from what had been stated ---Statements of pr osecution witnesses lacking
consistency --Accused had succeeded to make out a case of bail ---As ingredients of main
Ss.376 & 354, P.P.C., were missing, on analogy of principle of further inquiry, accused was
admitted to bail, in circumstances.
2009 PCr.LJ 153; 1996 PCr.LJ 620 and 2004 PCr.LJ 1876 ref.
Sanaullah Ababaki for Applicant.
Mrs. Saima Jameel for the State.
Barrister Iftikhar Raza Khan for the Complainant.
Date of hearing: 6th November, 2009.
ORDER
MUHAMMAD NOOR MESKANZAI, J. ---By m eans of this order Criminal Bail
Application No.236 of 2009 is sought to be disposed of.
Facts of the application are that on 28 -9-2009 F.I.R. No.98 of 2009 was registered
with Police Station Kuchlak by one Mst. Maria. It was alleged that on crucial day i .e. 28 -9-
2009 at 4 -30 p.m. her neighbour Abdul Qadoos alias Pehlwan entered the house and forcibly
took the complainant in the room and closed the room inside, then accused tried to commit
Zina with complainant forcibly, on hue, cry and resistance of compl ainant she was subjected
to beating with kicks and fists. Meanwhile brother of complainant namely Rasheed and other
inhabitants of Mohallah gathered after breaking the door, they entered the room and
separated/saved complainant from the clutches of accused Abdul Qadoos so meanwhile
Abdul Qadoos made his escape good. In consequence of this attack complainant sustained
internal injuries. The information of incident was conveyed to her husband and upon arriving
of her husband report was lodged.
After lodging of F.I.R. accused/ applicant was arrested and investigation of the case
was carried out, during the course of investigation police recorded the statements of Abdul
Rasheed, Abdul Sattar, Abdul Majeed, Abdul Karim, Bakabul and constable Fazal -ur-
Rehman. Cha llan of the case was submitted by the prosecution before the trial Court.
Accused/applicant moved Bail Application No. 167 of 2009 which was rejected by the
Additional Sessions Judge -VI, Quetta vide order dated 21 -10-2009.
Mr. Sanaullah Ababki learned cou nsel for accused/applicant submitted that in fact a
concocted story has been fabricated. The learned counsel urged that the sections mentioned
in the F.I.R. are not at all attracted, particularly the ingredients of sections 376 and 354 are
absolutely missi ng. It was further canvassed that there is not an iota of independent evidence
available with the prosecution to substantiate the accusation. Learned counsel further
submitted that in fact some loan was outstanding to husband of complainant and
accused/app licant was called by her husband to collect the amount from him, he went there
and no payment was made but this false story was made out with mala fide intention in order
to deprive applicant from his amount. According to learned counsel for applicant the case of
the prosecution against the applicant requires further probe and inquiry, therefore,
accused/applicant is entitled for grant of bail. Learned counsel relied upon the judgment
reported in 2009 PCr.LJ 153 Lahore.
Barrister Iftikhar Raza Khan Advocat e appearing for complainant opposed the bail
application with vehemence by submitting that accused has committed not only a non -
bailable offence but an offence for which punishment upto life imprisonment is provided. He
further argued that accused attempte d to commit Zina forcibly, upon refusal of complainant,
she has been badly beaten. It was further submitted that there is big chunk of evidence
available on the record justifying prosecution version. At the end he submitted that bail of
accused/applicant w as rightly rejected by Additional Sessions Judge -VI, Quetta and applicant
is not entitled for concession of bail. On the other hand Mrs. Saima Jamal Advocate for State
adopted the arguments forwarded by learned counsel for complainant and requested for
rejection of application. Learned counsel for respondent relied upon following authorities: --
(i) 1996 PCr.LJ 620 (Federal Shariat Court)
(ii) 2004 PCr.LJ 1876 (Lahore)
I have heard learned counsel for the parties and gone through the available record. At
the very out set it may be noted that Additional Sessions Judge -VI, Quetta dealt with the
matter mechanically and has passed the order without consulting the record. Perusal of F.I.R.
reveals that there is delay of three hours in lodging of F.I.R. and no pl ausible explanation has
been offered by the prosecution regarding 3 hours delay, so in such circumstances
deliberations and consultations cannot be ruled out. No doubt in F.I.R. there is clear
allegation of an attempt to commit forcible Zina but yet compla inant has not stated that her
cloths were stripped, removed, torn so without going deep into the contents of F.I.R.
apparently ingredients of sections 376 and 354, P.P.C. are missing. P.W. Abdul Rasheed
states that he broke the staple of door and entered t he room, and saved/ separated
complainant from clutches of accused, but all other P.Ws. i.e. Abdul Sattar, Abdul Majeed,
Abdul Karim, Bakabul entering together with P.W. Abdul Rasheed do not state so.
Statements of other P.Ws. are to the effect that when t hey entered the room they found Mst.
Maria and accused present in the house. None of the rest of P.W. stated that complainant was
being beaten and P.W. Abdul Rasheed or other saved complainant from the clutches of
accused. It also strange that four persons entered in the room they did not try to overpower
the accused or did not beat him, even a single slap was not extended. So perhaps the
prosecution seems to have concealed the real position and situation might be somewhat
different from what has been state d. So in these circumstances the statements of P.Ws. lack
consistency, hence applicant has succeeded to make out a case for bail. As observed earlier
that ingredients of main section i.e. 376 and 354, P.P.C. are apparently missing, therefore, on
the analog y of principle of further inquiry applicant is entitled for bail. I am forfeited by the
judgment reported in 2009 PCr.LJ 153 Lahore. As far as authorities referred by learned
counsel for complainant are concerned, perusal whereof reflects that the facts of cases are
entirely distinguishable. As far as first citation is concerned in that case clothes of wife of
complainant were torn and she had become naked; whereas in this case no such
allegation has been levelled neither by complainant herse lf nor by any P.Ws. As far as
later authority is concerned in that case offence of Zina -bil-Jabr was committed with an
unmarried girl whereas in case in hand there is no such allegation, hence the cases so
cited do not lend support to the case of prosecution.
Perusal of order dated 21 -10-2009 passed by Additional Sessions Judge -VI, Quetta
shows it can easily be gathered that the order so passed is not speaking one, and learned
Judge did not take pain to go through the contents of F.I.R. A ccording to F.I.R. complainant
has gone to police station wherefrom she was given M.L.C. (although police is not supposed
to give M.L.C.) to victim but Additional Sessions Judge -VI, Quetta has stated that after the
occurrence police came to the place of o ccurrence where complainant was found got injured
and was sent to Hospital for medical treatment.
In such view of the matter it can easily be concluded that Additional Sessions Judge
has dealt with the matter mechanically. For the forgoing reasons, I am c onvinced that the
case of prosecution against the accused/applicant is of further inquiry, hence I am inclined to
admit the applicant on bail in the sum of Rs.200,000 (two lacs) with PR of like amount to the
satisfaction of Registrar/Additional Registrar o f this court.
The observations made hereinabove are tentative in nature, which shall not influence
merits of the case.
H.B.T./26/Q Bail granted.This judgment is reproduced from a publicly available source for informational purposes and does not constitute legal advice. If you believe this listing contains an error,
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