' The petitioner alongwith two others are accused of committing an offence under section 354, P. P.
C. For outraging the modesty of one Mst. Nargis wife of Zahid resident of Allama Iqbal Town, Lahore.
In addition thereto, the petitioner and his co-accused were also accused for having committed an offence under section 506, P. P. C.
2. Precisely, the allegation against the petitioner and his co-accused, Tajammal and Shamas, are that they had been teasing the complainant Mst. Nargis by making obscene remarks. The complainant had complained with regard to the .Conduct of the petitioner and the co-accused to their parents but allegedly the parents did not take any action, and thus the petitioner, and the co- accused were further encouraged to indulge into their netarious activities. It was alleged by the complainant that on 1st of May, 1984, at about 11 a.m. When her husband had gone to his shop, and while she was standing in the door of her house, for the purchase of vegetable from a vendor, the petitioner and the co-accused 'surrounded her. The petitioner remarked as to why the complainant was not giving lift to him. The complainant reprimanded them, whereupon the petitioner and the co-accused boiled with rage, and caught hold of the complainant from her neck and torn her shirt. Shamas and Tajammal, co-accused of the petitioner, caught hold of the complainant, from arms and dragged her on the road. According to the complainant, they had remarked that the complainant considered herself to be a beauty but the same will be spoiled.
With utmost difficulty, the complainant rescued herself and hit the petitioner with a stone and, thereafter, the petitioner and Tajammal co-accused left, and remarked that if she does not give lift to them, she will be killed. The neighbourers, Saadat Hussain and one Karam residents of 127, Ravi Block, were also attracted to the place of occurrence, and they reprimanded the petitioner and Tajammal co-accused, and rescued the complainant.
3. The co-accused, Tajammal and Shamas, invoked the jurisdiction of the learned Additional Sessions Judge, Lahore, for the grant of pre-arrest bail, and the interim bail was allowed to them, and the confirmation thereof is pending adjudication today before the said Court.
4. This Court was pleased to admit the petitioner to interim bail, on the ground that the co-accused have been admitted to bail. In fact, they had been admitted to interim bail only, and, as narrated above, the confirmation of their bail is to be decided today by the learned Additional Sessions Judge, Lahore.
5. This is certainly not a fit case for the grant of pre-arrest bail. Unfortunately, the trend of not only teasing to the womenfolk, but to humiliate them and to outrage their modesty, is on increase in our society. I think that the attitude of the parents also is a contributory factor towards this growing tendency which has to be noted with concern. Apart from the attitude of the parents, I am of the firm view, that the leniency on the partip of the Courts to indiscriminate grant of bails is also a factor for such Relying upon the dying declarations of the two deceased, namely, Wali Muhammad and Mst. Fazal Bibi, the ocular testimony furnished by Ghulam Rasul P. W. 1, Muhammad Aslam P. W.
2 and Muhammad Hussain P. W. 3 the motive and the abscondence of the appellant, the learned trial Court convicted and sentenced the appellant as stated above.
' Criticising the impugned judgment, the learned counsel for the appellant contends that the eye- witnesses being interested and inimical should not have been relied upon, that the dying declaration of Wali Muhammad deceased does not ring true for having been made in the presence of his relatives and not attested by the doctor and for the reason that it is silent about Mst. Fazal Bibi having been injured during the occurrence. It is further argued that the defence evidence negating the abscondence of the appellant has not been given due weight.
No doubt, Muhammad Aslam P.W. 2 had admitted that his family had criminal litigation with the appellant but his evidence cannot be thrown out merely on this score because he stands corroborated by Ghulam Rasul P. W. 1 and Muhammad Hussain P. W. 3 who are independent and natural witnesses. There is nothing to indicate that they had any motive to falsely implicate the appellant, Ghulam Rasul P. W. Had offered his prayers alongwith the deceased in the same mosque while Muhammad Hussain P. W. Was proceeding towards his house when the occurrence in question took place. No importance can be given to the minor discrepancies appearing, in the statements of the g eye-witnesses because they were examined after a period of 7/1-2 years of the occurrence. As the appellant was known to the P. Ws. And the deceased, therefore they would not have felt any difficulty in identifying him particularly when the occurrence had taken place during the day time. The dying declare-C tion Exh. P. 5 of Wali Muhammad provides further corroboration to the ocular testimony. Muhammad Anwar Khan S. I. Had taken all the necessary precautions in recording .It. It was recorded after obtaining a certificate of fitness from the doctor and the omission of Mst. Fazal Bibi deceased as having been injured during the occurrence appears to be quite natural. After receiving 14 gun-shot injuries he could not be expected to observe or notice as to who else bad been injured and as to where the pellets' had struck. The dying declaration Exh. P. Y.
Of Mst. Fazal Bibi also fully implicates the appellant. She bad no malice or ill-will against the appellant to falsely implicate him.
' The motive lends further corroboration to the prosecution story. The appellant was not denied the same and has admitted that he was murderously assaulted by the maternal-cousins of Wali Muhammad deceased for which a case under section 307, P. P. C. Was registered against them. He has also E admitted that his paternal-uncle Nawab was murdered by the real brothers of Wali Muhammad deceased who were ultimately acquitted. The abscondence of the appellant, however, does not stand established. No documentary evidence has been led in this behalf. Neither the proclamation, nor the warrants to arrest nor any report about the abscondence of the appellant has been produced. On the otber hand, it stands established from the prosecution evidence as well as defence evidence that the appellant had permanently settled in Sind with his father. But at the same time the defence evidence is not sufficient enough to cast doubt on the prosecution story that the appellant was not present at the spot on the day of occurrence.
' In the above circumstances, we are of the view that the prosecution has fully succeeded in bringing home the guilt to the appellant beyond all shadow G of doubt. He was therefore, rightly convicted. As regards sentence, we unhealthy trend. While making these observations, I should not be understood as a moralist because as a Judge of this Court, I have to do justice between man and man, in accordance with law, but at the same time, a Court do not act in vacuum, and cannot afford to be oblivious of the prevailing treads and circumstances in the society.
6. In deciding the question of the grant or refusal of bail, 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 bang for a sheep as for a lamb.
7. In addition thereto, as far as the 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. Unless in pre-arrest bail these conditions are established, a Court cannot admit an accused to pre-arrest bail.
8. In support of my view, I respectfully place reliance upon Hidayat Ullah Khan v. The Crown (1), Muhammad Safdar and others v. The State (2), Zia-ul-Hassan v. The State (3), and Muhammau lqbal v. The State (4).
9. Applying the criteria referred to above, I am of the view that high handedness is required to be curbed by the Courts sternly to save the society from chaos. In the present case, the petitioner and the co-accused who are also residents of the same locality, in a brutal manner had outraged the modesty of a woman, one of their neighbourer. The circumstances do not disclose ulterior motive on the part of the complainant, to involve the petitioner, and the co-accused falsely in this case with a view to disgrace them and, therefore, it is not a fit ease for the grant of pre-arrest bail or the confirmation of the interim bail already allowed to the petitioner. Accordingly, I would recall the order dated 7.5-1984 and amiss the present petition.
(1) PLD 1949 Lah. 21 (2) 1983 SCMR 645
(3) PLD 1984