The petitioners, namely, Mst Nazia Arshad and Saif Ullah, are seeking their bail before arrest in a case registered vide F.I.R. No 725, dated 10.11.2012, under Sections, 324, 336-B, P.P.C. read with Section 7 of the Anti-Terrorism Act, 1997, at Police Station, Chehlyak, District Multan.
2. The allegation against the petitioner Mst. Nazia Arshad is that she managed the presence of her husband in an isolated place viz. a room of hotel and finding opportunity, she sprinkled acid, which caused some injuries on the thigh part and penis of the complainant.
3. The learned counsel for the petitioners has argued that the registration of criminal case is, in fact, a result of matrimonial differences crept in the life of the couple and in order to put a restraint on the petitioners, to get implemented the terms as have been settled at the time of Nikah mentioned in Column No, 19, whereby, it was agreed at the time of Nikah that in case of divorce or second marriage, the complainant Zafar Hussain will pay an amount of Rs, 8,00,000 (rupees eight lac only) to Petitioner No 1. He further maintains that no offence, as has been alleged against the petitioners, is made out and even the. Doctor, who examined the complainant on 10.11.2012, at 10:15 p.m., has declared the nature of injuries under Section 337-F(i) of P.P.C.
4. The plea of pre-arrest bail has been opposed seriously by the complainant on the ground that, at any cost, the petitioners are not entitled to extraordinary relief of pre-arrest bail.
5. We have heard the respective arguments of the learned counsel for the parties and have gone through the record with their able assistance.
6. It is a fact that in getting the matter reported to the police, it took almost eighteen hours to the petitioner and such inordinate delay has never been explained. A copy of Nikahnama in between Petitioner No, 1 and the complainant is available on record showing that they entered into Nikah on 25.11.2011, and the entries in Column No, 19, as have been noted above, are present there. The manner in which the complainant has described that who the petitioners managed his presence in the hotel, gives a clear indication that the families of the Parties are, perhaps, not accepting their marriage and there are serious matrimonial differences in between the families, which gives strength to the version of the petitioners that in fact the complainant wants to enter into second marriage, but in order to avoid his liability, as agreed in view of Column No, 19 of Nikahnama, the present baseless case has been concocted against the petitioners on the basis of mala fides.
7. The act of terrorism has been defined in Section 6 of the Anti Terrorism Act, 1997, and maximum the provisions of Section 6(2)(b) of the Act can be attracted in the present case, which provides that an "action" shall fall within the meaning of terrorism, if it involves grievous violence against a person or grievous bodily injury or harm to a person.
Section 7 of the said Act provides the punishment for any act of terrorism.
8. Keeping in view the nature of injuries, allegedly caused at the hands of Petitioner No, 1 to the complainant, which have been described by the examinee Doctor as under Section 337-F(i) of P.P.C., the same cannot be termed as a grievous violence or grievous bodily injury.
9. Section 324 of P.P.C. can only be attracted, if the intention to, kill a person is present in the action of the accused. To cause damage the thighs or penis, by no means, can be taken an act, which has been committed with such intention or knowledge that under such circumstances, Qatl would have been taken place.
10. Section 336-B, P.P.C. although provides that whoever causes hurt by corrosive substance, shall be punished with imprisonment for life, but this Section must be considered as an extension of originally inserted Section 336 in Pakistan Penal Code, 1860 and to constitute an offence under Section 336, P.P.C., itlaf-i-salahiyyat-i-udw is a sine-quanon. The prosecution is equipped with no evidence as to whether 'Salahiyya t' of penis or thigh parts has been damaged or the same parts of the body have become redundant or inactive on account of alleged injuries caused to the complainant, in absence of such medical evidence even Section 336, P.P.C. prima-facie cannot be attracted. In view of the fact that all the injuries sustained by the complainant have been declared as jarah Ghayr-Jaifah-damiyah, which falls under Section 337- F(i) P.P.C., not only a bailable offence but also a non-cognizable one. At, the most, after consideration of the case, from' every angle, the offence under such provisions of P.P.C., prima-facie, can be attracted to have been committed by the petitioners.
11. From the narration of the facts, the incident as has been reported after spending some time in the hotel, both, Petitioner No, 1 and the complainant went to sleep, but Petitioner No, 1, according to the complainant, played dirty game, when after awakening up in the morning, he was busy in routine work in the washroom. Had there been any intention with Petitioner No, 1 to cause injuries to the complainant, it was the best time with her, when the complainant was sleeping in the said room. The incident, as has been alleged, took place within the four walls of a room of hotel, which, by no means, can be taken as a public place and, therefore, on this score also, offence, under, Section 7 of the Anti-Terrorism Act, 1997, cannot be taken an action of terrorism for which the crime must be committed at a public place.
12. The role assigned to Petitioner No, 2 is nothing more than that, when Petitioner No, 1 was chocked out from hotel, he extended facility of providing transportation to Petitioner No, 1 in order to reach her house. No criminality can be attached in extending such facility to Petitioner No, 1 or at the most, he can be termed as an abettor and involvement in view of Section 109, P.P.C. would certainly be thrashed out during trial and keeping in view the role assigned to Petitioner No, 2, nothing incriminating is to be recovered and he is not to be interrogated, in any manner, whatsoever by the investigating agency. His involvement being real brother of Petitioner No, 1 can also be termed as a mala-fide on the part of the complainant and police.
13. The mala-fides of the complainant while in league with the local police, are so much obvious that the same cannot be ruled out behind registration of the criminal case against the petitioners.
14.For what has been discussed above, this petition is allowed and interim pre-arrest bail already granted to the petitioners on 26.11.2012 is confirmed subject to their furnishing fresh bail bonds in the sum of Rs, 1,00,000/- each with one surety each in the like amount to the satisfaction of the Deputy Registrar (Judicial) of this Court.