Shams Uddin, the petitioner , is seeking pre-arrest bail in case FIR No. 324 of 2017, dated 11.08.2017 registered at Police Station Karor , District Layyah, in respect of an of fence, under Section 496-A, PPC.
2. The allegation as against the petitioner , culled from the evidentiary material produced before the Court, is that he along with co-accused abducted Mst. Kalsoom Bibi (daughter-in-law of the complainant) and subsequently committed rape with her .
3. I have heard the learned counsel for the parties and have perused the record.
4. At the very outset, I have noticed that despite the fact that the allegation was that the victim namely Kalsoom Bibi had been abducted for the purpose of commission of illicit intercourse and also despite the fact that she while getting her statements recorded under Sections 161 and 164 of Cr.P.0 also stated that she had been raped by three accused persons, no Medico Legal Examination was conducted of the said. Kalsoom Bibi, the alleged victim.
In absence of any Medico Legal Examination Certificate and in absence of any reason for any getting the same conducted it is difficult for me to hold that the petitioner was involved in this case without malice and malafide. It is also a matter of record that despite 'the fact that the petitioner returned to her house on 22nd of December , 2017, her statement under Section 164 of Cr.P.0 was not recorded till 26th December of 2017. Even though, there is delay in recording of the statement but the said statement is without corroboration at all and the victim was i neither examined by a Medical Officer by the Investigating Officer nor she made any effort to get herself medically examined so as to substantiate her allegations against the petitioner and his co-accused. So much so that the offence under Section 376, PPC has not been added during the investigation of the case as yet. Another aspect of the matter is that co-accused namely Ghulam Raza, who was attributed similar role and the offence against him is of similar nature was admitted to post arrest bail by the learned Magistrate on 26.11.2018. The said order is still in field and the same has not been challenged at any judicial forum. It has been held by the august Supreme Court that in such scenario, it would be absurd to send the petitioner behind the bars just to satisfy the ego of the complainant. Reliance is placed on the case of Muhammad Ramzan Versus ZAFAR ULLAH and another (1986 SCMR 1380 ) wherein the august Supreme Court of Pakistan has held as under-- "After hearing the learned counsel we feel that prima facie, at this stage, the case of the petitioner is not distinguishable from that of others to whom bail has been allowed. No useful purpose would be served if the bail of Zafar Ullah Khan respondent is cancelled on any technical ground because after arrest he would, again be allowed bail on the ground that similarly placed other accused are already on bail"
Sending the petitioner behind the bars, in view of the grant of bail to the co-accused would be an exercise in futility as he would also be immediately admitted to post arrest bail on ground of consi stency . Learned counsel for the complainant has vehemently argued that recovery is to be effected from the petitioner , hence, he does not merit the grant of pre-arrest bail. Suffice is to obse rve that for the purpose of recovery it is not necessary that the petitioner be sent behind the bars rather the said purpose can be procured through obtaining a search warrant by the Investigating Officer. The investigation of the case is complete and the Investigating Officer has already verified the stance of the petitioner as well as the complainant. In view of these physiognomies of the case, I am of the view that the involvement of the petitioner in this case cannot be said to be without malafide and malicious intent.
Sending the petitioner behind the bars at this stage would cause irreparable losss to his reputation.
5. For the foregoing reasons, this petition is accepted and ad-interim pre-arrest bail already granted to the petitioner , by this Court, vide order dated 11.02.2019 is confirmed subject to his furnishing fresh bail bonds in the sum of Rs. 500,000/- (Rupees five hundred thousand only) with two sureties each, in the like amount, to the satisfaction of learned trial Court.
6. Needless to mention that any observations made in the above order are tentative in nature and shall not influence the trial Court.