1. ORDER MUHAMMAD TASNIM, J.---Through this bail application, present applicant seeks pre-arrest bail in case F.I.R. No. 108 of 2010 registered under sections 354-A, 353, P.P.C., at Police Station, Mirpur Mathelo.
2. The case as set out by the prosecution in the F.I.R. Is that on 25-5-2010 complainant Mst. Samina lodged her F.I.R., alleging therein that she is deputed as staff nurse at Civil Hospital, Mirpur Mathelo and since long accused Wahid Bux used to disturb her on phone and insisted for a friendship with him, for which she replied that she belongs to a respectable family and being a married woman she cannot think so. On the same day, when complainant was on her way to Civil Hospital, Mirpur Mathelo, when at about 8-00 a.m., accused Wahid Bux along with one unidentified person came there. Accused Wahid Bux asked complainant as to why she is not ready to make friendship with him, on which she replied that she is a respectable lady, on which accused Wahid Bux became annoyed and forcibly embraced and kissed the complainant and thereby outraged her modesty.
3. On her resistance, accuse Wahid Bux torn her clothes, worn by her. She raised cries, which attracted to P. Ws. Nazir Ahmed Chadhar and Akbar Gadani. Seeing them, accused ran away.
4. Learned counsel for the applicant has submitted that there are pending litigation between the applicant and Dr. Shuhabuddin EDO(Health) and on his instance and due to mala fide, complainant lady was planted by Dr. Shubabuddin. EDO(Health) and she has lodged false F.I.R.
5. Against the applicant. He further argued that even if contents of F.I.R. Are treated as true, they do not make a case under section 354-A, P.P.C. He further argued that present applicant is charged under two sections viz. 354-A and 353, P.P.C. He says that no case under section 354-A, P.P.C. Is made out from the bare reading of the F.I.R. It will at best constitute offence under section 354, P.P.C., which is laiabe. Similarly, he says that section 353, P.P.C. Is also bailable. Learned counsel in support of aforesaid submissions, invited my attention to the provisions of section 354-A, P.P.C.
6. Which is quoted below:-- "Assault or use of criminal force to woman and striping her of her clothes.---Whoever assaults or uses criminal force to any woman and strips her of her clothes and, in that condition exposes her to the public view, shall be punished with death or with imprisonment for life, and shall also be liable to fine."
7. Bare perusal of the above quoted provisions indicates that whoever assaults or uses criminal force to any woman and strips her of her clothes and, in that condition exposes her to the public view, shall be punished with death or with imprisonment for life, and shall also be liable to fine.
8. Learned counsel for the applicant has also invited my attention to the provision of section 354, P.P.C., which is quoted as under:-- "Assault or criminal force to woman with intent to outrage her modesty.---Whoever assaults or uses criminal force to any woman, intending to outrage or knowing it to be likely that he will hereby outrage her modesty shall be punished with imprisonment of either description for a term which may extend to two years, or with fine, or with both."
9. Bare perusal of the above quoted provisions shows that whoever assaults or uses criminal force to any woman, intending to outrage or knowing it to be like that he will thereby outrage her modesty shall be punished with imprisonment of either description for a term which may extend to two years, or with fine, or with both.
10. In support of his contentions, learned counsel has placed reliance on the case of Gulzar alias Gulzar Ahmed v. The State (2003 PCr.LJ 727). In the said reported case learned single Judge of this Court while dealing with the bail matter has dealt with the provision of section 354-A, P.P.C. With the following observation:-- "Counsel appearing for the State however, points out that the case was not of section 354-A, P.P.C., as the lady was not exposed to public view after striping her. According to him, the case would fall under section 354, P.P.C. As it could be safely assumed that it was the intention of the party to outrage the modesty of the lady. In a case registered under section 354, P.P.C. The punishment is only two years."
11. In case of Karam Dad and another v. The State and another (PLD 2008 Lah. 308), learned Single Judge of Lahore High Court while dealing with the provision of section 354-A, P.P.C. Has observed as under:-- "I also find that the allegations as contained in the F.I.R. Lodged at the behest of the respondent, prima facie, do not attract the provisions of section 354-A, P.P.C. The plain reading of the said provision of P.P.C. Would reveal that to attract the said penal provision, two conditions must be fulfilled, firstly there should be striping of the clothes and secondly the victim in that condition be exposed to the public view. To attract the provisions of this section both the said conditions must co-exist. In this case, according to complainant himself the clothes of the victim were just torn and not striped of. Secondly the second prerequisite for the application of section 354-A, P.P.C., regarding exposure of the victim to the public at large, prima facie, is also missing".
12. In another case reported as Abida Jabeen v. Imtiaz Ahmad and others (1997 PCr.LJ 600), wherein learned Single Judge of Lahore High Court while dealing with the provision of section 354-A, P.P.C.
13. Has observed as under:-- "In this section, the words "stripes her of her clothes and in that condition exposes her to the public view" are very important words. This section applies only in those cases whereafter striping of the clothes, the lady is made naked and exposed to the public view. It is not applicable in the matter where very small portion of a shirt is torn. In the present case, I especially directed to produce the shirt of the lady before the Court for examination. In the presence of the learned counsel for the parties it was seen which is torn from a very small place of its front side."
14. On the other hand, learned counsel for the complainant has vehemently opposed the grant of pre- arrest bail and argued that no lady in our society will lodge a false F.I.R., in which her dignity is involved. She further says that the case of the complainant is true and the applicant is not entitled to bail. She further says that contents of F.I.R. Attracts the provisions of section 354-A, P.P.C. She has placed reliance on the case of Zulifqar and 2 others v. The State (1996 PCr.LJ 620).
15. Similarly, learned APG has also opposed the grant of pre-arrest bail and has adopted the arguments of learned counsel for the complainant.
16. I have heard learned counsel for the parties and have gone through the record so also law quoted hereinabove. From the bare reading of F.I.R. It is seen that the complainant in the F.I.R. Has stated as under:-- "During my resistance, accused Wahid Bux tore clothes worn on my body, as such I cried, on my crying my staff members each Nazir Ahmed Chadhar and Akbar Ali Gadani came running towards us, on seeing their coming both accused crossed northern wall and ran away".
17. If the above quoted portion of the F.I.R. Is tested on touchstone of the provisions of section 354-A, P.P.C. It wi be seen that to attract the provisions section 354-A, P.P.C. Two conditions are be met.
18. There should be striping of clothes and secondly the victim in that condition be exposed to public view. To attract the above provisions, both the conditions are to be met. Tentative assessment of the F.I.R. And bare perusal of section 354-A, P.P.C. Show that requirement of section 354-A, P.P.C. Are not met by the contents of the F.I.R. Since it is bail stage, I shall not dilute upon in detail the provisions of sections 354 and 354-A, P.P.C. It is left open to the learned trial Judge, who after recording of the evidence of the parties may take any view, in view of the material placed before him during course of evidence. I am in full agreement with the judgments cited by learned counsel for the applicant that applicant has brought his case within the purview of section 497(2), Cr.P.C.
19. Accordingly, order, dated 30-6-2010 is hereby confirmed on the same terms and conditions.
20. The judgment cited by learned counsel for the complainant relates to an appeal and even it is distinguishable on facts and does not apply to the case in hand.
21. The above observations are tentative in nature and the trial Court shall not be influenced at all and pass its judgment strictly in accordance with law and material placed before it. Learned APG has pointed out that there are only few witnesses in this case and it will be just and proper to give direction to trial Court to conclude the trial within three months. Order accordingly.
22. In view of above, bail application is disposed of accordingly.