'SHAHID ANWAR BAJWA, J.---According to the petitioner fateful day was April 11th 2005. It is stated by the complainant that at that time she was serving as the Administrator Brenton Carey Girls Hostel, situated at 247 Staff Lines, Fatima Jinnah Road, Karachi. She stated in her complaint that Bishop Sadiq Denial, respondent No,1 who resided in Trinity Church compound wanted to terminate her from her job but managing committee was not agreeable to it. On 11-5-2004, at 9-15 a.m.
Bishop Sadiq Denial along with respondents Nos.2 to 13 and 17 and 18 and 20/25 other persons entered the hostel. Complainant stated that the Watchman informed her from the gate through Intercom and therefore she locked the door of the hostel and also informed her other staff.
Thereafter she stated that there was a knock on the Accounts Officer door of the hostel and she saw through the window that respondents Nos.1, 2, 3, 4, 5 and other persons were standing and they started to break the door. The complainant stated that she immediately went to the office and on telephone called Emergency No,15 and informed them about the incident. She stated that door of the Accounts Office was broken and thereafter mob started breaking central door of her office.
She stated that she went inside the hostel and hid herself in the said room. For about 45 minutes culprits tried to find her and finally found her. Respondent No,5 is alleged to have slapped her on the face and thereafter started beating her with kicks and fists. Respondents "Nos.3 and 4 were shouting and saying, "Kill her". The girl students came forward and rescued the complainant and took her to prayer Room and locked the door. The accused persons started breaking lock of the Prayer Room but students resisted for about 2 and half hours. Upon this personal guard of respondent No,1, one Sajjad loaded his gun and directed towards the girls and told the girls to handover complainant otherwise they would be fired upon. The girls were not intimidated. Upon this respondents Nos. 3, 4, and 5 came forward and started beating the girls with kicks and fists and tore their clothes and used abusive language. Respondents Nos.3, 4 and 5 dragged the complainant from the prayer Room to the playground, where respondents Nos. 1 and 2 and others were standing, while beating her all the way. Respondent No,1 commanded respondent No,3 to take off complainant's clothes. Respondent No,2 pulled her shirt upward and respondent No,3 pulled down her Shalwar. Complainant begged respondent No,3 for pity on her for the sake of his daughter. On this, respondent No,3 is stated to have said that she would make complainant fully naked. Then all the accused persons started hitting sensitive parts of her body and naked legs.
Respondent No,5, bit the complainant on her shoulder and tried to obtain her signature on certain documents. At that time respondents Nos.15 and 16 arrived there and also pressurized the complainant to put her signature on those papers but she again refused. The accused continued to beat her. After six hours, on intervention of elders and respectable people of the community she was rescued from them. She alleged that all that was done was on orders of and with active participation of respondents Nos.1 and 2.
2. Police refused to register F.I.R. Complainant went to CPLC and then her medical examination was conducted on the' same day. Report of Medico Legal Centre stated as follows:--
(1) Diffuse swelling of right thumb. On examination movement painful, tenderness present.
(2) Complaint of pain over right shoulder. On examination movement painful, mild tenderness present.
(3) Complaint of pain over left lower part of leg. On examination tenderness positive. Movement painful.
(4) Complaint of pain over lower incisor. On examination mild pain.
(5) Bruises of size 10 x 8 c.m. On right thigh.
(6) Bruises over left lower leg size 6 x 4 and 1.5 x 1 c.m.
3. Final medico legal opinion was, "As per ex-ray report issued from the Department of Radiology Civil Hospital, Karachi the reserved injuries Nos.1, 2, 3, 5, & 6 are declared as other hurts subsection II and Injury No,4: as per Dental opinion issued from the Department of Dentistry, JPMC Karachi, as Shajah-eKhafifah."
4. Learned counsel for the applicant thereafter referred to newspaper reports of daily Nawa-i- Waqt, Express, Aghaz, Jisarat of April 13th and daily 'Dawn' and Awam of April 16th to show that incident was widely reported by the press.
'First F.I.R. Was registered on 13-4-2005 at 1430 hours being F.I.R. No,44/2005 at Frere Police Station Karachi. It was registered on the complaint of lady Constable Noreen Sarfraz. She stated that on 11- 4-2005 she came for duty at Women Police Station and was directed to report at Trinity Church.
She duly reported there. Lady Constable Nighat was already there. She stated that on orders of DSP Clifton, lady Constables were posted inside of the gate whereas male officials stayed outside the gate. At 12-30 p.m. The present applicant along with 15/20 girls came out of the hostel and started a ruckus and also started tearing her own clothes. Both the police constables tried to stop her on which the present applicant and her partner girls attacked the police constables. Police constable rescued her with difficulty. As a consequence of this incident it was stated in the F.I.R. That lady constable Noreen Sarfraz suffered a miscarriage of her two months old fetus.
5. The issue remained an alive issue in the press and eventually on 28-4-2005 CCPO appointed Dr. Sanaullah Abbasi, TPO Saddar Town, to conduct an inquiry who in turn submitted his report on 21- 5-2005. He recorded statements of Rukhsana Naseem, Mrs. Ghazala Shafique, Roma George, Surraya Anthony, Huma Younus, Bishop Ejaz Inayat, Saba Younus, Nargis Shamsher, Shamila Afroze and Zarahshan Haroon and others and in conclusion rendered the following findings:--- "FINDINGS:
(1) This is a fact that people entered the girls hostel, broke the doors open, dragged Mrs. Ghazala Shfaique outside, manhandled her and outraged her modesty.
(2) Both parties did not act in a legal/desirable way to resolve their disputes. The matter should have been either resolved/arbitrated by the Court or by themselves according to the constitution of the Diocese of Karachi. Police should have played their proactive role in resolution of matter before hand after completing homework.
'RECOMMENDATIONS: 'In the light of above facts, it is an established fact that persons forcibly entered in hostel, dragged Mrs. Ghazala Shafique out, manhandled her and outraged her modesty. Local Police remained silent spectators and did not prevent the untoward incident which could have been prevented before its happening. Police rather let it happened.
'Therefore it is recommended that:-
(1) A criminal case under the relevant sections of the law may be registered for outrage of modesty.
(2) Local Police may be warned for not being pro-actioner.
(3) Role of Lady Police will be determined later on, as the case has been registered. The enquiry is under way. Why lady police was called and no male member of the force was sent with them when male members of Christian community were present at the spot. It is also intriguing on the part of local police."
6. As consequences of this report F.I.R. No,87/2005 was registered at Frere Police Station on 27-6- 2005. It was an F.I.R. Under sections 452, 147, 148, 354, 337 and 427, P.P.C. Against unknown persons for forcibly entering the girls' hostel and dragging the present applicant out, manhandling her and outraging her modesty. The applicant not being satisfied which this state of affairs met State functionaries, including the Prime Minister, Chief Minister, Home Minister and Chief Secretary.
Ultimately, Home Secretary ordered second inquiry. Mr. Nayer Hussain, AIG was appointed a Inquiry Officer. The inquiry Officer submitted his report dated 25-8-2009 and he recorded the following conclusion:--- "CONCLUSION 'From the statements of the complainants and witnesses it is quite clear that the incident of forcible evacuation of Mst. Ghazala Shafique did take place on 11-4-2005. Although police was informed that there is likelihood of disturbance no action was taken by police, it remained silent spectator while Mat. Ghazala Shafique (administrator) of Brenton Carey hostel was forcibly evacuated from her office. Whether any legal procedure was followed to terminate the services of Mst. Ghazala Shafique was beyond the mandate of this enquiry.
'After the incident had taken place the complainant Mst. Ghazala Shafique tried her best to get the F.I.R. Registered but her complaint was not entertained by police, instead two cases have been registered on behalf of the State. It is quite surprising to note as to why her F.I.R. Was not registered.
'The background of the incident appears to be the tussle between Mr. Sadiq Daniel and Mrs. Ejaz Inayat for the position of Bishop but this particular incident of 11-4-2005 took place in the presence of police. The complainant Mst. Ghazala Shafique, Administrator, Brenton Carey Hostel may be exaggerating the actual incident but forcibly evacuation from her office did take place for which her complaint should have been registered. The role of police is also not above board it appears they were trying to help in the evacuation.
'It is recommended that the cases already registered may be handed over to some impartial officer/ agency for investigation and case of Mst. Ghazala Shafique may also be registered."
7. It is submitted by the learned counsel for the applicant that constitutional petition No, 1289/2005 was filed on 1-12-2005. The learned AAG on instruction stated that the petitioner may like to appear before the Incharge of concerned police station where her statement would be recorded and in case any case of cognizable offence is made out, further action in accordance with law shall be taken. It was after this order was passed by the High Court that the third F.I.R. Was registered being F.I.R. No,169/2005 at 1800 hours and it was under sections 147, 148, 149/ 337-A (i), 506-B and 354-A, P.P.C. It is submitted by the learned counsel that as soon as order was passed by the High Court the police tried to arrest her. She was able to obtain bail before arrest from this Court and that bail was subsequently confirmed by this Court. As soon as F.I.R. Was registered the present respondent applied for pre-arrest bail. Initially pre-arrest was granted and thereafter vide order dated 4-1- 2006 pre-arrest bail was confirmed by Sessions Judge, Karachi South. The relevant part of the order of Sessions Judge reads as under:-- "Admittedly there is counter F.I.R. No,44/2005 under sections 147, 148, 353, 337-A, 337-F-(i), 338(A), P.P.C. Regarding the same incident against present complainant Mst. Ghazala registered at Frere P.S. On the report lodged by one lady Constable Naureen Sarfraz. Furthermore, challans in both the cases have been filed before the Court of Judicial Magistrate. All the offences shown in the challan are bailable except section 338-A, P.P.C. Furthermore, section 354-A, P.P.C. Has been substituted by section 354, P.P.C.
'Since there are counter cases between the parties regarding the same incident and challans have been submitted in the Court of Magistrate and the sections applied are not serious, therefore, there will be no justification in sending the accused persons to jail as they are even otherwise entitled for bail.
'I therefore, confirm the interim pre-arrest bail of the applicant/ accused already granted on same terms and conditions,"
8. Final charge sheet was submitted by police on 25-5-2006. In this charge sheet section 354 was substituted by section 354-A. It may not be out of place to mention that on 20-1-2006 CCPO ordered constitution of a three members team of police officials which number was enhanced to a 5 members team and based on report of this team investigation was entrusted to DIGP and thereafter challan was submitted on 26-5-2006. In the challan although it was clearly stated that Zafar labal started removing her shirt and George Bhatti removed her Shalwar and beat her on sensitive parts, section 354 was substituted for 354-A. Therefore on 17-8-2006 the present applicant moved an application under section 190(2), Cr.P.C. Before IIIrd Judicial Magistrate Karachi South for addition of section 354-A and transfer of the case to the Court of session. The present respondents contested this application. On this application on 28-10-2006 Honourable IIIrd Judicial Magistrate passed an order allowing the application and sending the case to the District and Sessions Judge. The relevant part of the order is as under:-- "In consonance with above scale or law I have minutely examined the contents of F.I.R. As well as charge sheet and other material available on record,. I see the contents of F.I.R. As well as charge sheet explicitly shows that it is alleged that the complainant was dragged out from her office room by the accused persons and they put off her clothes and stated stroking on the private parts of the complainant's body, moreover the perusal of Inquiry Report dated 21-5-2005 available in the Police File it reveals that in the said Inquiry many witnesses were examined and the witnesses namely Rukhsana Naseem, Surriya Anthony, Saba Younus, Daisy John, Shakeela Darshan, Zaresh Aziz, Huma Younis, Saima all were students and they specifically stated in their statements that mob of people forcefully entered the hostel, smashed the doors and brutally beaten the Girls and pulled them from heirs, took Madam Ghazala Shafique to playground where Zafar Iqbal took her shim while second person pulled down her Shalwar.
'The said position has also been admitted by the P.I. For the State. From above facts, it is quite crystal clear on record that the case is made out which comes under the clenches of section 354- A, P.P.C. And the same is exclusively triable by the Court of Session. Accordingly I hereby allowed the preset application as prayed, let the case be sent to the Honourable District and Sessions Judge South Karachi."
9. The case was thereafter assigned to 1st Additional Sessions Judge, Karachi South and numbered as Case No, 42/2006. On 2-12-2006 complainant filed an application for taking the accused into custody in view of addition of section 354-A in the challan. Meanwhile on 9-1-2007 Criminal Transfer Application No,2/2007 was filed by the present respondents. The matter eventually ended up on 31-7-2007 when the Honourable Supreme Court passed the following order-- "By consent of Mr. Raja Qureshi learned counsel for the petitioner, Mr. Suleman Habibullah, learned counsel for private respondents and Mr. M. Sarwar Khan, learned Additional Advocate General, Sindh, the impugned order of the High Court is modified and all the three cases arising out of F.I.Rs Nos. 44/2005, 87/2005 and 169/2005, are directed to be tried separately by 1st learned Additional Sessions Judge, Karachi South. The delay in filing this petition is also condoned for the reasons mentioned in the application for condanation of delay. This petition is accordingly converted into appeal and stands disposed of in the above terms."
9. After the order was passed by the Supreme Court present applicant withdrew his application filed on 2-12-2006 for taking the accused persons into custody.
10. On 18-1-2007 the-complainant filed an application for cancellation of bail. This application was numbered to Criminal Miscellaneous Application No,59/2007. Since the trial Court was not deciding cancellation of bail application, criminal Miscellaneous Application No,186 of 2007 was filed before this Court. The trial Court heard the cancellation of bail application on 19-10-2007 and then adjourned it to 3-11-2007 for orders. Since the matter had been adjourned by trial Court for orders, Criminal Miscellaneous Application 186/2007 was withdrawn by the complainant. The Court below continued to adjourn decision on cancellation of bail application. On 21-1-2008 Deputy District Attorney moved in the trial Court application for custody of the accused persons. Meanwhile the trial Court had adjourned application for cancellation of bail for announcement of order to 2-2- 2008. On 1-2-2008 protective bail was granted by this Court in Criminal. Bail Application No,91 of 2009. The order of this Court was in the following words:-- "Without dilating upon the merits of the case or otherwise the applicants are granted protective bail for ten days subject to furnishing surety in the sum of Rs,50,000 each with P.R. Bond in the like amounts to the satisfaction of Nazir of this Court.
'The period shall commence from the date of filing the bail before arrest application."
10. Since bail had been granted by the High Court on 1-2-2008, on 2-2-2008 the accused persons filed application in the trial Court for dismissal of cancellation of bail application.
11. After having obtained an order from this Court on 1-2-2008 bail application was filed by the present accused before the trial Court on 15-2-2008. The bail application was still pending (being B.A. No,141/2008) when on 23-2-2008 bail application No,172/2008 was filed in this Court and on 25- 2-2008 interim bail was granted to the present accused persons which application was finally decided on 2-7-2009 and the following direction was issued by this Court:-- "Learned counsel for the applicants and the complainant agree that a direction be given to the trial Court to decide both these applications within a specified time. They also agree that till the decision of these applications, the applicants shall not be arrested. I, therefore, direct that both these applications shall be simultaneously decided after hearing the concerned parties. The trial Court is directed to decide these applications by 7th September, 2009.
'With the above observations, this bail application stands disposed of."
12. Thereafter the impugned order was passed by which order the cancellation of bail application filed by the present applicant was dismissed and Crl. B.A. No,141/2008 filed by the present respondents was disposed of as not pressed. This has been a narration of facts as given by the Advocate for the complainant.
13. Dr. Farogh Naseem, Advocate for some of the respondents, gave his own narration of facts and it was follows. Applicants and the respondents are Christian by faith and follower of Anglican Protestant denomination. Their Church is called church of Pakistan. There is a Bishop of Pakistan, who heads the Church of Pakistan. Church of Pakistan is divided into 8 dioceses. Diocese of Karachi encompasses Karachi and Balochistan, A Dutch gentleman was Bishop of Karachi for a long time.
He expired and office of Bishop of Karachi became vacant. Elections were held in 1997 and respondent No,1 and one Aijaz Inayat were candidates for election of office of Bishop of Karachi.
Respondent No,1 alleged rigging in the election. A suit was filed in the High Court. Status-quo was ordered by the High Court in the suit and finally suit was disposed of on the basis that a fact finding inquiry shall be held under the order of Archbishop of Canterbury and thereafter result of such inquiry shall be followed. That inquiry recommended fresh elections. Fresh elections were held on 4-2-2002 and respondent No,1 was elected as Bishop of Karachi. This was done in accordance with the order passed by this Court in Civil Suit No,1454 of 1997 on 28-1-2002. In suit No,996/2002 filed by the present respondent No,1 against the said Aijaz Inayat on 1-10-2002 an order was passed by this Court restraining him from acting, representing or stating himself in any manner to be Bishop of Karachi. Counter suit was filed by said Aijaz Inayat No,279 of 2002. Both the suits are still pending.
14. Learned counsel submitted that restraining order passed by this Court on 1-10-2002 against Aijaz Inayat is still in the field. He further submitted that another suit No,87/2005 has been filed by respondent No,1 against the said Aijaz Inayat for vacation of Bishop House. Learned counsel further submitted that one Sardar Masih retired as Priest but did not vacate the house given to him. Suit No,601 of 2007 was filed. That suit is still pending. Through interim order he was directed to handover the charge of his see. He did that and also vacated the house.
15. Learned counsel submitted that on April 10th 2005 a meeting of the managing committee was held in which Mrs. I. Pearl, Dr. Shireen Martin, Mrs. P. Shakti respondent No,16 and Mrs. Freed Shergill respondent No,15 were present. This was a meeting of Board Committee of Brenton Carey Hostel and the meeting decided that services of present applicant be terminated on ground of insubordination, gross misconduct and mismanagement. The committee in this connection considered various complaints received by it from the students and priests. In consequences of this decision of the committee letter of suspension dated 10-4-2005 under the signature of present respondent No,1 was issued to the present applicant. It was when this letter was sought to be served, the learned counsel submitted, that the present applicant conducted herself as was alleged in F.I.R. 44 of 2005. Learned counsel referred to newspapers clipping of daily New Akhbar, Jura'at and Awan of April 15th, Khabrain of April 16, daily Jang of April 15th, Awam of April 19th, Khabrain of April 29th, Jura'at of April 26th, daily Dawn of April 15th to contend that the present applicant's conduct as Incharge of hostel has been very diabolical and had caused serious unrest in the Christian community. Learned counsel further submitted that Executive Committee of the Karachi Diocese in its meeting held on 18-2-2004 resolved to strike-off names of all the presbyters from the diocesan rolls who had worked beyond the system and procedure. Consequently, show- cause notice dated March 8th, 2005 was issued to the husband of the applicant. As soon as this show-cause notice was issued, husband of the applicant filed Civil Suit No,283 of 2005 in the Court of IV-Civil Judge, Karachi South, in which suit it was, inter alia, prayed that show-cause notice dated 8-3-2005 be declared as null and void and without lawful authority. This civil suit was dismissed.
16. There were two applications before the learned Court below. One was application under section 497(5), Cr.P.C. Filed by the complainant for cancellation of bail granted vide order dated 4-1-2006 and other was application for bail filed by the respondents after application under section 190(2), Cr.P.C. Was allowed by the Judicial Magistrate on 28-10-2006 and section 354-A was added to the Final Charge Sheet. Vide the impugned order while the application filed by the complainant/applicant was dismissed, application filed by the respondent/accused persons was disposed of as not pressed. Criminal Revision Application No,145 of 2009 has been filed to challenge order on application under section 497(5), Criminal Revision Application No,144 is in respect of order on application of the present respondents.
17. With this background of acrimony between the parties, the stage is now set to come to submissions of the learned counsel. Learned counsel for the applicant made the following submissions.
(1) Learned Court below in its order, dated 5-9-2009 ventured beyond its domain and took upon itself a premature exercise of attacking the F.I.R. And medical evidence. At the stage where the trial Court was i.e, at the stage where question involved is only whether bail should or should not have been granted, it was only required of the Court to make a tentative assessment and not to embark upon deeper appreciation of the lis before it.
(2) The bent of the mind of Court below is clear from the fact that it reproduced the first half of the F.I.R. In its order and chose to completely ignore the second half of the F.I.R. Such choice even if not deliberate cannot be concomitant Freudian connotations.
(3) That the Court below did not take into consideration nature of the offence as made out by a simple, unencumbered reading of the F . I . R .
(4) The learned Court below did not refer to a single citation of case law cited by the complainant/ applicant although a number of judgments of the Supreme Court and High Courts were cited by the complainant/applicant during arguments.
(5) There were eight eye-witnesses of the incident. None of them has been considered by the learned Court below. Thus, there was ample material available in the shape of statements under section 161, Cr.P.C. And report under section 173, Cr.P.C., enquiry report submitted by Dr. Anauallah Abbasi and Inquiry report submitted by the Additional I.-G. (Investigation), medical report, recovered case property. If all that is kept out of consideration at this stage, it Would perpetuate injustice rather than serve the cause of justice, which is not intention of law.
(6) Since the respondents are accused of an offence under section 354-A, P.P.C. And since this particular aspect has not been taken into consideration by the Court below, the respondents were not entitled to bail, therefore, application for cancellation being Criminal Miscellaneous Application, No,59 of 2007 should have been allowed by the Court below.
18. Learned counsel relied upon the following cases law:--
(i) Sarfraz Khan v. The State and 2 others PLD 1988 SC 726;
(ii) Zaitoon v. Muhammad Riaz and 3 others, PLD 1996 Pesh. 30;
(iii) Allah Ditta and another v. The State 2003 MLD 1848;
(iv) Naveed v. The State, 2004 YLR 2392;
(v) Mst. Qudrat Bibi v. Muhammad Iqabl and another, 2003 SCMR 68;
(vi) Gul Zaman alias Gulla v. The State and another 2004 YLR 3335;
(vii) Muhammad Safdar and others v. The State, 1983 SCMR 645; (viii)Arif Mateen Bhutta v. The State, PLD 1984 Lah.
383.
19. Barrister Farogh Naseem for some of the respondents, made the following submissions:--
(1) There were 15 witnesses, who had given statements under section 161, Cr.P.C. And all of them bad been one on the point that the whole incident was a fabricated one.
(2) The respondents were not associated with the enquiry conducted with Dr. Sanaullah Abbasi, T.P.O. Saddar Town. He submitted that without associating the respondents how could the T,P.O.
Conduct an enquiry and thereafter submit a report.
(3) Learned counsel referred to page 143, where Aijaz Inayat is described as a Bishop. Learned counsel submitted that in terms of the order passed by this Court in a civil suit Aijaz Inayat is restrained from representing himself as a Bishop.
(4) One F.I.R. Was registered as F.I.R. No,43 of 2005 on 12-4-2005 and another F.I.R. Containing a counter-version was registered on 27-6-2005. In the presence of two F.I.Rs it is a case of two competing versions. If there is a counter-version, bail is always granted and it is never cancelled, because paradigms for cancellation of bail are different from the paradigms for grant of bail. In this regard, learned counsel relied upon Sultan Ahmed v. Malik Niamat Hussain and another, 1988 PCr.LJ 836; Muhammad Boota v. Abdul Hameed and 3 others, 2004 PCr.LJ 1447; Darya Khan v.
Pasham Khan v. Another, PLD 2005 Pesh. 183 and Muhammad Shahzad Siddiq v. The State and another, PLD 2009 SC 58.
(5) Although it is alleged in the F.I.R. That the door was broken. No broken door has been noticed by the enquiry committees. No other injured girl has been produced for medical examination and in the medical report of the applicant there is no biting mark reported on the shoulder.
(6) Mere fact that the offence is grave is not and cannot be a ground for cancellation of bail. In this regard learned counsel relied upon Muzafar Iqbal v. Muhammad Imran Aziz and another 2004 SCMR 231 and Qasim Khan v. Sharafat Khan 2003 YLR 2910.
(7) Previous litigation clearly indicates existing of enmity between the parties and narration by the applicant must be seen through the prism of the incident. This litigation includes civil suit No,283 of 2005 filed by husband of the applicant against, among others, respondent No, 1 . Cause of action of the suit included stoppage of salary of and show-cause notice issued to the husband of the present applicant.
(8) Bail is granted on an F.I.R. Section 354-A is clearly stated in the F.I.R. Non-mentioning of any particular section in the bail order and even in the F.I.R. Does not vitiate that order by which bail is granted. Learned counsel in this regard relied upon the State v. Rashid Ahmed and another, 1988 SCMR 1129; Mehr Ghulam Nabi v. Muhammad Shafique and another, 1979 SCMR 479; Rashid Hussain -v. The State, 2003 YLR 1191 and Shahnaz Bibi v. Gul Khan alias Haji Khan and another, 1999 PCr.LJ 868.
(9) Case is now ripe for trial and complainant is deliberately delaying trial either by seeking adjournment or by making frivolous applications. At the stage where proceedings have reached, trial Court should be directed to expeditiously proceed with the trial.
20. Mr. Shaukat Hussain Zubaidi, learned Advocate for respondents Nos.1, 3, 4 and 5 in addition to adopting all arguments of Dr. Farogh Nasim made the following submissions:-- (1). Section 354-A is specifically stated in the bail application and it also finds mention at two places in the order of 4-1-2006. Therefore there has not been any misrepresentation by the respondents.
(2). Application for taking respondents in custody was filed 11-1/2 months after order dated 4-1- 2006 by which order bail was granted. Why was it delayed for so long. Learned counsel in this regard relied upon Piaro v. The State and another, 1984 PCr.LJ 149 and Nazar Muhammad v. The State and another 1977 PCr.LJ 277.
(3) This is not a complaint case but an F.I.R. Case. In an F.I.R. Case State is the prosecutor and the State has not filed any application and has therefore accepted, if not otherwise at least by acquiescence, order dated 5-9-2009 impugned in these applications.
(4) Application for taking the respondents in custody was filed by the present applicant on 2-12- 2006 but was subsequently withdrawn. What would be effect of withdrawal of this application. The applicant/complainant cannot be allowed opportunities till eternity for going on repeating application after application for the same relief. Learned counsel relied upon the State through Advocate-General, N.-W.F.P. v. Zubair and 4 others, PLD 1986 SC 173.
(5) Humiliation is a ground for grant of bail and the applicant's sole motive is to humiliate the respondents. Learned counsel in this regard relied upon Jamaluddin v. The State, 1985 SCMR 1949 and Fateh Muhammad v. Raja Khan and another, PLD 1981 SC 347.
(6) Criminal Revision 144 of 2009 is superfluous.
21. Mr. Iqbal Khurram, Advocate for respondents Nos.6, 7, 12, 13 ,14 ,15 and 17 while adopting arguments of Dr. Nasim and Mr. Zubaidi, submitted that once bail has been granted by a Court of competent jurisdiction High Court must exercise restraint in interfering with the order of the Courts below. He relied upon Haji Khan Sherin and another v. Siraj and another, 2006 PCr. LJ 252. He further submitted that the two investigations are at variance and there is litigation pending. Relying upon Aurang Zaib and 3 others v. The State, 2009 PCr.LJ 1169. Learned counsel contended that High Court should in such circumstances stay away from interfering with orders of the lower judiciary. Learned counsel sought to distinguish Sarfraz Khan v. The State and 2 others, PLD 1988 SC 726 on the ground of nature of injuries. Learned counsel submitted that respondent No,1 is a Bishop and has been a priest all his life. He is man of God and cannot even imagine such a despicable and heinous act much less commit it.
22. While learned counsel for respondents Nos.8 and 10 merely adopted arguments of Dr. Nasim, Mr. Zubaidi and Mr. Khuram, learned APG did not make any submission and merely stated that the Court may pass any order on merits.
23. Exercising her right of reply learned counsel for the applicant made the following submissions:--
(i) The applicant has not been a party to the dispute between Sadiq Danial and Ijaz Inayat. She has not been a plaintiff or defendant in any of the litigation referred to learned counsel for the respondents.
(ii) No medical report has been placed on record in any of the proceedings regarding alleged miscarriage of the police constable.
(iii) Question regarding absence of bite mark on shoulder of the applicant is a question of deeper appreciation of evidence which exercise cannot be undertaken at the bail stage.
(iv) There has not been any counter version by any of the respondents. Other F.I.R. Is by a lady Constable.
(v) Right of pre-arrest bail is a very limited right and is not attracted in the circumstances of these applications. She relied upon Muhammad Azam v. The State, 1996 SCMR 71.
(vi) Accused have been misusing the facility of bail and have not been attending the Court below except on a few occasions over the last four years are so.
24. I have considered the submissions made by the learned counsel and have also gone through the record as well as extensive case law cited by the learned counsel.
25. Although the alleged incident occurred on April 11, 2005, F.I.R. Of the complainant was registered after eight months, challan was submitted on 25-5-2006. In the challan section 354 was substituted by section 354-A, P.P.C. And therefore application under section 190(2) was filed. It was allowed on 28-10-2006 and section 354-A was brought back. Thereafter question whether in view of bringing back in of section 354-A, P.P.C. That has been going on for last more than three years is the question as to what is impact of this bringing of section 354-A P.P.C.
26. Interim bail was granted and thereafter on 4-1-2006 interim bail was confirmed. That order has been produced above. The learned Sessions Judge in his order by which order he confirmed bail specifically noted that section 354-A had been substituted by section 354. With bringing in of section 354-A, P.P.C. a substantial chunk of structure on the basis of which the bail was confirmed stood demolished. With this gone would the order granting bail be still sustainable.
28. Learned Court below in the impugned order firstly summed up contents of F.I.R. Till the point the girls took the complainant, so as to protect her, to the prayer room. Thereafter it referred to existence of three F.I.Rs, It has notice of absence of cut marks on shoulder in medical report but it appears the Court below did not notice injuries to thighs. Thereafter the Court referred to previous enmity between the parties. Finally it observed that considerations for grant of bail are different from considerations for cancellation of.
28. The last one was also the key plank in arguments of the learned counsel for the respondents. Dr. Faroogh Nasim relied upon very significant case law in this regard. Muhammad Boota v. Abdul Hameed and 3 others, 2004, PCr.LJ 1447 was the first case. In this case offence alleged fell under section 302, P.P.C. Bail was allowed. High Court observed that what weight with the Court below was that there were two counter versions. It also observed that "consideration in grant of bail to the accused are altogether different than in a case where cancellation of bail is sought by the complainant. Unless exceptionally strong grounds such as abuse/misuse of concession of bail exist for cancellation of bail the High Court interfere with the order of grant of bail passed by the trial Court." Learned counsel next relied upon Muzafar Iqbal v. Muhammad Imran Aziz and another, 2004 SCMR 231. It was a case of ineffective firing. Application for cancellation of bail was moved. The Supreme Court observed as under:-- "It is well settled by now that consideration for cancellation of bail are different from the consideration for grant of bail.
'Section 497(1), Cr .P.C. Prohibits the grant of bail for offences punishable with death or imprisonment of ten years or over. Section 497(5), Cr.P.C. Does not command the Court to cancel the bail even when the offence is punishable with death or imprisonment for life, and even if the grant of bail is prohibited under section 497(1), Cr. P. C . The discretion is left in the Court under section 497(5), Cr.P.C, which is part materia with the principles which apply to setting aside the orders of acquittal."
30. Next reliance was placed by the learned counsel on Qasim Khan v. Sharafat Khan, 2003 YLR 2910. In the case it was held that "once a Court of competent jurisdiction passed bail order, very strong and exceptional grounds are required to cancel the same. The bail can be recalled where the person on bail repeats the offence, hampers the investigation, makes some efforts to tamper with the evidence, commits some acts of violence against the police and prosecutes the witnesses or manages to flee away from the country or beyond the control of sureties." Next case relied by learned counsel for the respondents was Mehr Ghulam Nabi v. Muhammad Shafique and another, 1979 SCMR 479. In this case High Court had granted bail, it appears on the ground of delay in trial.
Application for cancellation of bail was moved in the High Court. It was pleaded that order of High Court was contrary to Anwar Khan v. The State, 1978 SCMR 314. The High Court dismissed application for cancellation observing that having once exercised his discretion to allow bail it could not be recalled in the absence of cogent reasons such as the order having been obtained through misrepresentation or suppression of facts or that the concession of bail was being abused in a manner so as to hamper or obstruct fair trial. In Rashid Hussain v. The State, 2003 YLR 1191 bail application was dismissed. Therefore this case is not all germane to point in issue in the present matter. Reliance was also placed on Nazar Muhammad v. The State and another 1977 PCr.LJ 277. In this case it was alleged that offence under section 307, P.P.C. (stabbing by a police constable) had been committed. Counter F.I.R. Was registered before F.I.R. Of stabbing by a police constable could be registered. Bail was allowed by the Additional Sessions Judge on the ground of case being of two versions.
'Application for cancellation of bail was filed by the injured person alleging that the constable had threatened him with dire consequences. Bail was cancelled. Matter was taken to High Court. Mr. Justice Zafar Hussain Mirza after noticing that there was no affidavit of the applicant or his witness in respect of alleged act of threatening observed:- "In the absence of any evidence to that effect the mere fact that certain reports were made to the police, in my opinion, are not sufficient to resort to the drastic action of cancelling the bail. Once the accused person is admitted to bail, he cannot be deprived of his liberty without there being tangible evidence to the effect that he misused that facility to the prejudice of due administration of justice. The provision regarding the cancellation of bail cannot be made available to private parties to satisfy their grudges against each other or to use as a means of wreaking their vengeance."
31. Haji Khan Sherin and another v. Siraj and another, 2006 PCr.LJ 252, was in this regard referred to by Mr. Iqbal Khurram. Offence in this case fell under section 302, P.P.C. Bail was granted by the Illaqa Magistrate but was cancelled by the Sessions Judge. The High Court after observing that principle of tentative assessm ent must be followed with extra care and caution and that dying declaration is like statement of any other witness and therefore surrounding facts and circumstances cannot be lightly ignored held as under:-- "The provisions of section 497, Cr. P. C . Provides (sic) sufficient guidelines and have vested the Magistrate, the Sessions Court and the High Court with concurrent powers in the matter of grant of bail. It has been a consistent view that once bail is granted by a competent Court for valid reasons on consideration of material available before it then, the Court higher in rank shall exercise considerable restraints in interfering with such order because liberty of a man is equally precious and guaranteed one which cannot be disturbed except in accordance with law and according to the salutary principle laid down in this regard."
32. Although the State through Advocate General, N.W.F.P, v. Zubair and 4 others, PLD 1986 SC 173 was also referred but in this case it was held by the Supreme Court that a successive bail application must be placed before the same Judge who decided the first bail application.
Arguments of the learned counsel miss the essential point. It was not a question of cancellation of bail simpliciter which was being considered by the Court below. I whole beartedly agree with the learned counsel for the respondents that paradigms for cancellation of bail are wholly and materially different from the paradigms for grant of bail. A survey of above case-law indicates that bail can be cancelled when:--
(i) Exceptionally strong grounds such as abuse/misuse of concession of bail exist;
(ii) A Court cannot cancel the bail even when the offence is punishable with death or imprisonment for life, and even if the grant of bail is prohibited under section 497(1), Cr.P.C. The discretion is left in the Court under section 497(5), Cr.P.C.
(iii) Grounds for cancellation of bail are pari materia with the principles which apply to setting aside the orders of acquittal.
(iv) Bail can be recalled where the person on bail repeats the offence;
(v) Hampers the investigation;
(vi) Makes some efforts to tamper with the evidence;
(vii) Commits some acts of violence against the police;
(viii) Prosecutes the witnesses;
(ix) Manages to flee away from the country or beyond the control of sureties.
(x) Order of bail has been obtained through misrepresentation or suppression of facts.
33. There cannot be any cavil with the above propositions. But this case stands on different footings. In this case bail has been granted assuming (and to this aspect we shall return later) that there are no allegations falling under section 354-A, P.P.C. Is this is not a case of misrepresentation, it would be difficult to imagine as to what would possibly be misrepresentation. Conceded that at the time when bail was confirmed on 4-1-2006 section 354-A had been deleted. But thereafter order under section 190(2) was passed and section 354-A was brought in and that piece of fact was not at all in the consideration of the honourable Sessions Judge who confirmed the bail on 4- 1-2006. For the same reason contention of the learned counsel that mere fact that the offence is grave cannot be ground for cancellation of bail is repelled because it is case where bail was granted under the position (or impression) that alleged offences do not include section 354-A. If a Court passes an order granting bail in oblivion of offence alleged against the accused person, bail granting order would suffer from a mistake which goes to the root of allegations.
34. Contention of Dr. Farogh Nasim that there are 15 witnesses who had given statements on the point that the entire incident was fabricated need not detain us here. This would essentially be a defence plea and if a Court starts considering defence pleas at the bail stage, there would be nothing left for the Court to determine after the trial is concluded. Whether the door was broken or not is a question relating to deeper appreciation of evidence and it cannot be gone into at this stage. Since challan has been filed and since order on application under section 190(2) passed on 28-10-2006 has been accepted by the respondents (as it has not been challenged) allegations of non-association of the respondents with inquiry by the police is of no material consequence anymore. Similarly if ljaz Inayat is described as Bishop by the Inquiry Officer, can it be said to have vitiated the F.I.R.
35.. It was also contended by the learned counsel that previous litigation clearly indicates existing of enmity between the parties and narration by the applicant must be seen through the prism of previous enmity. He also submitted that in this regard that case of action of suit filed by husband of the applicant included stoppage of his salary of and show cause notice issued to him. I would not give much weight to it. Enmity is a double edge sword. It cuts both ways. A girl would concoct a story for reason of previous enmity. One cannot rule out this possibility. But can one rule out possibility of one, out of enmity and spite for another, disgracing to the ultimate limit women folk of that other. Legal tomes are full of such instances.
36. Another contention of the learned counsel was that there were three F.I.Rs, and there are two versions of the incident. Therefore it is a case of further inquiry and therefore respondents are entitled to bail. He relied upon Sultan Ahmed v. Malik Niamat Hussain and another, 1988, PCr.LJ 836.
In this case there were allegations and counter allegations of firing. Consequently two F.I.Rs, were lodged which each party giving its version. Bail was granted by the Sessions Judge, High Court did not interfere with the order of the Court below because in presence of two versions it was yet to be determined (and it could only be done after trial)as to who was aggressor and who was the victim.
He also relied upon Muhammad Shahzad Siddiq v. The State and another PLD 2009 SC 58. In this case there were counter versions. The Supreme Court held that "in such cases normally, bail is granted on the ground of further inquiry for the reasons that question as to which version is correct is to be decided by the trial Court which is supposed to record the evidence and also to appraise the same."
37. It would be difficult to find a contested case in law journals in which version of accused exactly, dot for dot and comma for comma, match with version of the prosecution in general and complainant in particular. What is meant by case requiring inquiry is that the material available to connect the accused persons with the alleged offence still has gaping holes which need to be filled and unanswered question or question which F could be logically raised qua such connection between the accused and the offence, or dark spots which have not yet received any or sufficient light from investigation. It does not merely and only mean a competing version of defence. It means much more. The honourable Supreme Court in Asmatullah Khan v. Bazi Khan and others, PLD 1988 SC 621 has held that merely for such reason accused would not be entitled for grant of bail because mere possibility of further inquiry exists in almost every criminal case. In the present case there is no counter version by the present respondents. No F.I.R. Has been lodged by any of the present respondents.
38. Next contention of the learned counsel for the respondent was that bail is granted on an F.I.R.
Section 354-A was clearly stated in the F.I.R. And therefore non-mentioning of this (or any other) section in the bail order and even in the F.I.R. Does not vitiate the order by which bail is granted. I may also refer here to contention of Mr. Zubaidi that section 354-A finds mention at two places in the order dated 4-1-2006. Learned counsel in this regard relied upon The State v. Rashid Ahmed and another, 1988 SCMR 1129. Alleged offence, in this case, fell under section 302, P.P.C. High Court while granting bail notice that there was evidence that the accused and his relatives had taken oath on Holy Quran before the gathering of the tribesmen proclaiming innocence of the accused persons and consequently held that the case was covered by provisions of section 497(2). The Supreme Court did not agree with the conclusion recorded by the High Court but observing that the case was of early 1985 and there is possibility that the respondent has either stood his trial or that the trial is to commence soon maintained the order of bail on a ground other than the one given by the High Court. The case-law does not appear to be of much relevance. A reference at this stage may, once again, be made to order, dated 4-1-2006. In the title of the order after referring to the F.I.R. It is mentioned the F.I.R. Was under, inter alia, section 354-A, P.P.C. Thereafter in first para of the order while referring to F.I.R. No,169 of 2005 where sections of law were stated, section 354-A is mentioned. However one cannot lose sight of the fact that thereafter it is specifically stated that "section 354-A has been substituted by section 354." In presence of such clear statement in the order itself it would not be available to anyone to contend that existence of any allegation under section 354-A was present to the mind of the learned Sessions Judge when he confirmed the bail. When the learned Judge himself stated that section 354 had been substituted, only one conclusion is inescapable: The Court was oblivious, or at least non-cognizant, of existence of allegations under section 354-A.Therefore contention of the learned counsel cannot carry any weight in the circumstances of the case.
39. Next it was contended by Dr. Faroogh Nasim that the case is ripe for trial and therefore bail should not be cancelled. Reliance was placed on Darya Khan v. Pasham Khan and another PLD 2005 Pesh.
183. In this case offence alleged was under section 302, P.P.C. The High Court observed that since that had commenced and there was no evidence that the accused had committed any overt act for the hampering of investigation or of the trial after his being released on bail. Case of Shahnaz Bibi v. Gul Khan @ Haji Khan and another, 1999 PCr.LJ 868 was also referred to where it was held that when a case is ripe for trial bail should not be cancelled. What has happened in the present case. For six months F.I.R. Was not registered. It took another one year to bring the section back and it took another three years for bail application in view of bringing in of section 354-A to be decided and that bail application too was disposed of as not pressed. There was stage at which the case is, I do not think one can gloss over the entire sordid history of litigation by saying that it is ripe. For trial. Ripe for trial it in any case is not.
40. One ground taken by Mr. Zubaidi was that application for taking respondents in custody was filed eleven and a half months after bail was confirmed vide order dated 4-1-2006. Learned counsel relied upon Piaro v. The State and another, PLJ 1984 Cr.P.C.
284. In this case application for cancellation of bail was filed two and a half months after grant of bail. The High Court noticed that the accused had remained in jail for more than two years before being enlarged on bail. It was further held that the applicant had filed application for cancellation of bail two and half months of grant of bail and it showed that the applicant had selected his own timings. It was also observed that an applicant cannot be thus allowed to harass an accused person. Although the learned counsel also referred to Nazar Muhammad's case (supra) but that case is on a different point. In the present case bail was confirmed on 4-1-2006. Section 354-A was brought on by allowing of application on 28-10-2006. Thereafter application for taking the respondents in custody was filed on 2-12-2006. Therefore the present is not of any significance and inordinate delay in filing of application for taking the accused in custody.
41. Here I may attend to another point stressed by Mr. Zubaidi. It was contended by the learned counsel that application for taking the respondents in custody was filed by the present applicant on 2-12-2006 but was subsequently withdrawn. What would be effect of withdrawal of this application. The applicant/complainant cannot be allowed opportunities till eternity for going on repeating application after application for the same relief. Learned counsel relied upon The State through Advocate-General, N.-W.F.P. v. Zubair and 4 others PLD 1986 SC 173. This is a case primarily on the point that once bail application is dismissed, second application for bail must be placed before the same bench. Learned counsel for applicant submitted that after section 354-A was brought in on 28-10-2006, application for taking the accused persons in custody was filed on 2-12- 2006. The Supreme Court vide order dated 31-7-2007 ordered that cases arising out of all three F.I.Rs, have heard and decided by the Court below separately. Consequently application was withdrawn and application for cancellation of bail was filed. In this background, I do not think contention of the learned counsel for the respondents holds much water.
42. Mr Zubaidi argued that humiliation is a ground for grant of bail and the applicant's sole motive is to humiliate the respondents. He relied upon Jamaluddin v. The State, 1985 SCMR 1949. In this case there were six accused persons. Four were granted pre-arrest bail. Bail application of two accused in custody was dismissed by trial Court, they filed bail application in High Court. High Court issued suo motu notice to the other four who had been granted pre-arrest bail. Thereafter the High Court by the same order by which it refused bail to two accused persons, cancelled pre- arrest bail, ordered that they be taken in custody and ordered the trial Court to issue their non- bailable warrants of arrest. The Supreme Court held that cancellation of pre-arrest bail did not entail consequences that had been ordered by the High Court without there being request from police. Proper order would have been to cancel pre-arrest bail and leave the accused persons to be dealt with by police as it thought fit. Thereafter the Supreme Court reiterated the principle that "arrest for ulterior motives such as humiliation and unjustified harassment was a valid G consideration for grant of pre-arrest bail. " Although learned counsel also relied upon Fateh Muhammad v. Raja Khan and another, PLD 1981 SC 347 but that case is in respect of a pre-emption matter and is therefore not germane to point in issue in the present case. Jamaluddin's case turns on its peculiar facts. Every criminal prosecution is pursued by the complainant, almost never with a charitable motive, and almost always with motive of revenge and bringing bad name and misery, yes misery, to those who had caused wrong to the complainant. Every bringing of bad name has consequence of a certain degree of humiliation, less or more depends upon position of two parties and the attending circumstances. On the other hand one might argue that one gets an egg-in-the face if bail is granted to a person that one accused of a serious crime. He might argue that he would become a laughing stock in his community. Therefore, the Court has to carve a balance and tread a path of moderation. Justice must be done to both the parties. While it is justice to provide, relief to a wronged one it is equally a justice to punish a wrong doer. Mere fact that by arrest a person would be humiliated would be no ground for grant of bail. Bail must be granted, refused or cancelled on the basis of merits of the case, the law and paradigms established by the superior Courts and on no other extraneous considerations, be they of the nature of a sense of outrage against the accused or sense of pity on the accused.
43. Mr. Iqbal Khurram also referred to Aurang Zaib and 3 others v. The State, 2009 PCr.LJ 1169 in support of his contention that when two investigations are at variance and there is litigation pending High Court should stay away from interfering with orders of lower judiciary. In the reported case it was held that when two investigations were conducted in the case according to which in the first investigation accused were declared innocent but in second investigation they were declared guilty. It was held that when two investigations were at variance then no reliance could be placed on any of the investigations. It was therefore held that the case was of further inquiry and interim bail was confirmed. The contention as far the principle of law is concerned is undeniable. However in the present case while inquiry by Dr. Sanaullah Abbasi recommended that "a criminal case under the relevant sections of the law may be registered for outrage of modesty, Mr. Nayyar Hussain recommended that case. Of the present applicant "may also be registered". Therefore there is no variance as far end result of the two inquires are concerned.
44. Learned counsel for the applicant referred to case of Zaitoon v. Muhammad Riaz and 3 others, PLD 1996 Pesh.
30. In this case according to the F.I.R. Allegations were that a female was stripped of her clothes, abused and disgraced. Bail was granted by the Magistrate. In High Court it was contended that since concession of bail had not been misused or abused, it was not a case for cancellation of bail.
The High Court held that on tentative assessment there were reasons to believe that respondents were guilty of the offence, therefore discretion exercised by the Magistrate in their favour did not seem to be proper. Consequently bail was cancelled. In this case High Court also held each member of the assembly as not entitled to facility of bail. She also relied upon Allah Ditta and another v. The State, 2003 MLD 1848. In this case four accused persons were alleged to have made wife of the complainant naked in a public thorough fare and in that condition exposed her to public view and had also committed indecent acts with her. In post arrest bail application occurrence was denied and it was contended that section 354-A had been added to make offence more grave and since no one from the vicinity had supported the allegations, it was a case of further inquiry. The High Court observed that statement of the victim under section 161, Cr.P.C. Was on record and accused were named in the F.I.R. The High Court observed that procurement of affidavits of persons of locality smacked of an attempt on part of the accused persons to tamper with prosecution evidence. Bail was declined. She further relied upon Naveed v. The State, 2004 YLR 2392. In this case for an offence under section 354-A, P.P.C, the High Court relied upon just two facts; accused was named in the F.I.R. And clearly implicated in statement under and dismissed the bail application. Thereafter the learned counsel relied upon Gul Zaman Alias Gulla v. The State and another 2004 YLR 3335. In this case allegations were that the accused person caught hold of the complainant from her hair, made her fall on the ground, removed her loin cloth and snatched her Dupatta when she tried to cover herself with it. High Court upheld the order of Court below which had refused bail. Learned counsel also relied upon Muhammad Safdar and others v. The State, 1983 SCMR 645. It was case involving offence under sections 324/325/149, P.P.C. Application for bail before arrest was dismissed by the High Court. The Supreme Court observed that "bail before arrest is not a rule in cognizable offences, and is to be allowed only when it can be shown that the petitioner apprehends arrest due to some ulterior motives on the part of the authorities or other influential persons, there are some peculiar features of the case which would justify the exercise of this discretionary power." Thereafter she relied upon Mst. Qudrat Bibi v. Muhammad Iqbal and another, 2003 SCMR 68. In this case view expressed in Muhammad Safdar's case (supra) was reiterated. It had been alleged that the accused person had committed a murder by giving hatchet blows. Interim pre-arrest bail was granted by the trial Court which order was challenged in the High Court and the High Court dismissed the Miscellaneous application. The Supreme Court set aside order of the Courts below on merits as well as by observing that "concession of bail before arrest is granted to an accused if it is established that his involvement is based on mala fide by the prosecution."
45. Lastly and most importantly she relied upon Sarfraz Khan v. The State and 2 others, PLD 1988 SC-726. Facts of this case were that on 8-8-1987 a case under section 354-A was registered for alleged offence that accused had caught hold of wife of complainant, stripped her and in such condition she was attacked with butt of a gun by one and by a Sota by the second accused person. She was thus made naked and insulted and upon her cries two persons came from nearby fields and rescued her and covered her. The wronged wife informed her husband about the incident. Accordingly F.I.R. Was registered. The Magistrate treated it as an offence under section 354, P.P.C. And granted bail. Assistant Sessions Judge on application cancelled the bail. High Court thereafter granted bail. This the High Court did for two reasons: firstly that police during investigations had come to the conclusion that the offence fell under section 354 and not under section 354-A, P.P.C. Which offence was bailable and secondly since bail was granted under section 496, Cr.P.C. And since words used in section 497(5), Cr.P.C. Are "who has been released under this section" bail granted under section 496, Cr.P.C, could not be cancelled in exercise of powers under section 497(5), Cr.P.C. The Supreme Court after observing that F.I.R. And medico- legal report were relevant facts and that it could not be left to the whim of the police to change nature of the offence accordingly to their convenience. Thereafter the Supreme Court observed that injury "multiple abrasions of various length and breadth spread over the areas of 10 x 8 cm on the front of chest in between the breast" was very significant and spoke for itself. Thereafter the Supreme Court observed as under:-- "In this sequence it must be kept in mind that in all bail matters special care must be taken not to give a specific finding or express any opinion either about the merits of the case or the nature of the offence. Any such observation amounts to sealing the fate of the case in favour of or against either party. In due course such a finding is likely to be exploited by a party and would prejudice the mind of the Court which is to try an accused. Even, otherwise, such a practice would be contrary to the doctrine of judicial discretion."
46. Thereafter the Supreme Court set aside the order of the High Court ordered that the accused persons shall remain in the judicial lock up till conclusion of the trial. Mr. Iqbal Khurram while referring to this case emphasized that nature of injuries in case of Sarfraz Khan involved abrasions between breasts, legs and thighs and complaint of pain in the left and right buttock. In the present case medical report states that there were bruises on thighs and lowers legs. One cannot lose sight of the fact that whereas in Sarfraz Khan's complaint was also of hitting with butt of gun and Sota in the present case allegations are of "hitting sensitive parts of her body and naked legs": No Sota and no gun. Therefore obviously injuries would be different.
47. In Allah Ditta's (supra) and Naveed's cases bail was declined. Since paradigms for grant of bail are different from paradigms for cancellation of bail, the case is quite distinguishable. Gul Zaman's case (supra) was of refusal of bail and for the same reason it is distinguishable. Muhammad Safdar's case relates to paradigms for grant of pre-arrest bail and questions relating to section 354-A were not at all involved in it. Qudrat Bibi merely followed Muhammad Safdar.
48. Zaitoon's case is more to the point; allegations of stripping a female; granting of bail by the Magistrate; contention in High Court that no misuse no cancellation. High Court held that on tentative assessm ent there were reasons to believe that respondents were guilty of the offence, therefore discretion exercised by the Magistrate in their favour did not seem to be proper.
Consequently bail was cancelled. In this case High Court also held each member of the assembly as not entitled to facility of bail. But more to the point rather applicable on the fours is case of Sarfraz Khan. Commonalities between two cases being (i) Allegations of stripping; (ii) F.I.R. Under section 354-A; (iv) Magistrate treating offence under section 354 and granting bail. Assistant Sessions Judge on application cancelled the bail and High Court granted bail. This the High Court did so for two reasons: one being that police during investigations had come to the conclusion that the offence fell under section 354 and not under section 354-A, P.P.C. Which offence was bailable Supreme Court appraised the injury and not only cancelled bail but at the same time ordered that the accused shall remain in judicial lock up till conclusion of the trial. The present application will have to be decided in light of the most applicable case of Sarfraz Khan (supra).
49. Learned counsel for the applicant relied upon Muhammad Azam v. The State, 1996 SCMR 71 also. The accusation was of offence under section 10 of the Offence of Zina (Enforcement of Hadood) Ordinance, 1979. The trial Court as well as the High Court had declined before arrest applications. The Supreme Court concurred observing that "right of pre-arrest bail is limited to exceptional and rare cases which are based on mala fide/enmity or where no offence is shown to have been committed on the bare reading of F.I.R." See also relied upon Arif Mateen Bhutta v. The State PLD 1984 Lah 383. Allegation was of offence under section 354, P.P.C. Two co-accused persons were granted interim bail by the Court below which was yet to be confirmed. Interim bail to the applicant was allowed by the High Court. However it was not confirmed. It was held by the High Court that in bail matters a balance has to be struck amongst three requirements: Firstly, a person not found guilty is presumed to be innocent; Secondly, the process to ascertain the guilt, and in case, the guilt is established, he has to be brought to book and must not be allowed to defeat such process, and Thirdly, the desperate persons would not be let loose on the society so that they think that they might just as well hang for a sheep as for a lamb. Thereafter the High Court observed that "in addition thereto, as far as pre-arrest bail is concerned besides, to strike a balance amongst the three requirements quoted above it is essential to establish, that not only the case has been registered with an ulterior motive but is designed to disgrace the accused involved therein." The learned counsel in my opinion has a point. Scope of scrutiny in pre-arrest bail is vastly different that it is in post-arrest bail. In pre-arrest rather than attending to merits of the allegation, far more attention is paid to circumstances of the person seeking bail. I do not mean that merits are entirely ignored. I am rather referring to nuances of emphasis. The order of emphasis is reversed in case of post-arrest bail; The present matter has travelled so far that pre- J force, and propriety calls for it also, that merits of allegations be also scrutinized.
50. There are 18 accused persons. Role of every one of them is not identical. They as far as offence under section 354-A is concerned, fall into four categories:--
(i) Respondent No,1 allegedly commanded respondent No,3 to strip the complainant;
(ii) Respondents Nos.2 and 3 who it is alleged respectively pulled up shirt and pulled down Shalwar of the complainant;
(iii) Respondent No,5 who allegedly bit the complainant on her shoulder;
(iv) Other private respondent who were cam followers or bystanders or who made hay of insult and disgrace of the complainant while sun of infamy shone.
51. Result of the above discussion is, following Sarfraz Khan's case (supra), that impugned order dated September 5, 2009 L and order dated 4-1-2006 are set aside, bail applications of respondents Nos.1, 2, 3 and 5 are dismissed and interim bail granted to other respondents is confirmed. Criminal revision applications Nos.144 and 145 of 2009 are disposed of in the above terms.