' This is a revision petition against the order of the learned District Court of Criminal Jurisdiction Mirpur, dated January 8, 1986, whereby the said Court refused bail to the petitioner.
2. This revision petition arises out of the following facts :-
(a) That one Muhammad Mushtaque son of Muhammad Bashir, caste Qureshi, lodged a report in the City Police Station, Mirpur on November 15, 1985, at about 4-45 a.m. To the effect that on the same day at about 5 a.m. His sister Mst. Hafeez Nisar went out to get milk out of the house wherein she lived and when reached at the gate of the house, he heard an alarm whereupon the informant alongwith his brother and their maternal-aunt went out and saw that Aziz Akbar son of Akbar, caste Jat and Muhammad Azam son of Kafait Jat were taking his sister away with a criminal intention on the point of a pistol in a car. The informant is a resident of certain village of Tehsil Dudyal and his maternal-uncle Gulzar had gone to England and in the absence of his maternal- uncle the informant alongwith his brother, Ishtiaque Ahmad and his sister Mst. Hafeez Nisar was living in Sangote (Mirpur) with his maternal-aunt, Mat. Saberan Bibi. The informant and Aziz Akbar son of Muhammad Akbar accused had good relations but the said accused did not enjoy good reputation and, therefore, for the last two or three months, the informant had ceased to be a friend of the said Aziz Akbar. Moreover, the informant had asked the said Aziz Akbar not to come to his house in future whereupon the said accused had threatened him with dire consequences ;
(b) On this report, the Police of Police Station Mirpur registered a case against the petitioner under section 11 of the Offence of Zina (Enforcement of Hudood) Ordinance, 1979, and started investigation. The petitioner was arrested by the police on the same day because he could not remove Mst. Hafeez Nisar. It was due to the fact that the driver of the car did not co-operate with him and when the Police reached at the spot, the accused-petitioner ran away leaving the girl Mst.
Hafeez Nisar, on the road. The Police recorded the statements of Mushtaque Ahmad and Ishtiaq.Ue Ahmad sons of Muhammad Bashir. Mst. Saberan Bibi wife of Gulzar, Muhammad Hanif son of Allah Ditta and Mst. Hafeez Nisar daughter of Muhammad Bashir on 15-11-1985. The investigation of the Police revealed that Muhammad Azam, accused had absconded and, therefore, the Police completed the proceedings under section 512, Cr. P. C. Against him. As far as the accused- petitioner Aziz Akbar is concerned, he was found involved in the forcible abduction of Mst. Hafeez Nisar for the purpose of committing rape with her. The Police recovered Mst. Hafeez Nisar daughter of Muhammad Bashir on the same day about half an hour after the occurrence and gave her on 'Spurdnama' to her relatives.
3. Aziz Akbar, petitioner moved an application for his bail before the Tehsil Court of Criminal Jurisdiction on December 5, 1985, and prayed that he should be released on bail because a false case has been concocted against him but the learned Tehsil Court of Criminal Jurisdiction Mirpur refused bail to the petitioner vide its judgment, dated December 5, 1985.
4. Dissatisfied with the order of the Tehsil Court of Criminal Jurisdiction, the petitioner moved an application for bail on December 8, 1985, before the learned District Court of Criminal Jurisdiction Mirpur. After hearing the parties, the leart.Ed District Court of Criminal Jurisdiction Mirpur refused to release the petitioner on bail vide its judgment, dated 8-1-1966.
5. Aggrieved by the order of the learned District Court of Criminal Jurisdiction Mirpur, the petitioner has come up before the Shariat Court and has assailed the orders of the Courts below.
6. The learned counsel for the petitioner has attacked the impugned order passed by the learned District Court of Criminal Jurisdiction Mirpur, dated 8-1-1986, on the following grounds
(a) That the F. I. R. Was lodged out of enmity against the petitioner. It is false as he is innocent in this case ;
(b) That no pistol was used during the alleged offence because no empty was recovered from the place of occurrence ;
(c) That it is wrong to say that Mst. Hafeez Nisar was dragged to the car and forcibly pushed into it so that she should be taken away for the purpose of Zina. Had she been dragged on, there would have been some bruises or injuries on her person but Mst. Hafeez Nisar was not got examined medically by the Police which fact clearly shows that she was never dragged on and pushed into the Car forcibly ;
(d) That the very fact that she was recovered after about half an hour from the time of occurrence, shows that this is a concocted case against the petitioner ; and
(e) The learned counsel for the petitioner has cited 1982 P Cr. L J 1191 in which the bail was allowed under the similar circumstances. He has also cited 1984 P Cr. L J 2547.
7. On the other hand, the Additional Advocate-General has reply:_
(a) That both the Courts below have refused bail to the petitioner and, therefore, the Shariat Court will not interfere into the discretion which has been exercised properly and according to the well- settled principles of law ;
(b) That the accused-petitioner is involved in a case under section 11 of the Offence of Zina (Enforcement of Hudood) Ordinance, 1979 and, therefore, he cannot be released on bail because the maximum sentence in this offence is life imprisonment and laches ; and
(c) That the prosecution has established a, prima facie, good case against the petitioner because he is involved as a named accused person in the F. I. R. And according to the statements recorded under section 161, Cr. P. C., prosecution witnesses have stated that he was guilty of the offence alleged against him.
8. I have heard the learned counsel for the parties and have carefully gone through the F. I. R., the impugned judgments of the two Courts below and the statements made under section 161, Cr. P. C.
By certain prosecution witnesses.
9. It is regrettable that the prosecution has not been able to put up the challan against the petitioner. No doubt, certain time elapsed because the proceedings under section 512, Cr. P. C.
Were conducted against the other co-accused, Muhammad Azam but that fact, per se, should not have deterred the prosecution from putting up the challan before the Court of competent jurisdiction.
10 I agree with Raja Lehrasap Khan, Advocate for the petitioner when he says that Mst. Hafeez Nisar was not medically examined and, therefore, there is no evidence of any criminal force used against he person. She was recovered from a place which is quite near to the plac of occurrence. The alleged occurrence took place in Sangote Mirpu where so many people live in the neighbourhood and had the accused used force against her, she would have raised an alarm and attracted the people nearby. Of course, the alleged occurrence took place in the early hours of the day but still the possibility of the presence of some people cannot be ruled out of consideration at the place of occurrence. She was recovered after about half an hour after the occurrence and, therefore, it can be safely presumed that no rape was committed upon her.It is a case in which {{URDU TEXT}}
11. I have persuad the case titled Bagh v. The State (1), in which Mr. Justice Muhammad Munir Khan, J., granted bail to the accused Bagh in a case under section 11 of the Offence of Zina (Enforcement of Hudood) Ordinance, 1979. In that case, the allegation was that Mst. Rasulan was abducted with a criminal intention by the accused-petitioner. There was no evidence about the commission of rape by the petitioner upon Mst. Rasulan. The learned Judge observed in para. 4 of his judgment :- "Be that as it may, the fact remains there that the petitioner is in jail since 11th March, 1981, and no challan has been submitted as yet. To me the accused person can demand speedy trial or immediate submission of the challan as a matter of right, and if this right is denied to him without any fault on his part, then he is justified in asking for bail. I am of the view that bail cannot be withheld because the offence is heinous one and it also cannot be denied as a punishment.
Therefore, 1 am of the view that no useful purpose will be served by keeping the petitioner in jail.
' For the foregoing reasons, the petitioner is allowed bail in the sum of Rs, 10,000 (rupees ten thousand) with one surety in the like amount to the satisfaction of A. C./Deputy Magistrate, Bahawalnagar."
12. In the case of Jalal Masih and others v. The State (2), Mr. Justice Muhammad Rafiq Tarar, J., of Lahore High Court allowed bail to Jalal Masih and others who were involved in a criminal case under section 11 of the Offence of Zina (Enforcement of Hudood) Ordinance (VII of 1979). There was no specific allegation of Zina against the petitioners who were in jail for about four months. The allegation according to the F. I. R. In that case was that the co-accused Mst. Inayat Bibi and Rani had taken away Mst. Shabnam alias Raashida, the daughter of Nazir Masih complainant and handed her over to the petitioners Jalal Masih and others. I would like to reproduce para. 4 of the judgment from page 2548 :- "4. I have gone through the relevant material. In her statement under section 161, Cr. P. C. The alleged abbuctee stated that after Mst. Lnayat Bibi and Mst. Rani had taken her out of her house both the petitioners came there at 9/10 p.m. And forcibly took her away in a Taxi Car by showing a knife. She did not level any allegation of rape in this statement. In her statement under section 164, Cr. P. C. She stated that both the petitioners came there at 9/10 p.m., used force{{URDU TEXT}} and showing a knife took her to a Chak near Sahiwal in a Taxi Car. According to her, she was kept in the Chak for a month. There is no specific allegation that she was subjected to Zina.. The learned Additional Sessions Judge was of the view that the statement reproduced above in Urdu indicated that she was subjected to sexual intercourse by the petitioner. At bail stage such an observation was not called for. On enquiry, Sardar ,Muhammad, A. S. I. States that Mst. Shabnam alias Raashida was not medically examined for ascertaining whether she was subjected to Zina or not because there is no allegation of Zina. The petitioners are in jail for the last about
(1) 1982 P Cr. L J 1191 (2) 1984 P Cr, L J 2548 four months keeping in view all the circumstances of the case. I admit them to bail in the sum of Rs, 20,000 each with one surety each in the like amount to the satisfaction of Assistant Commissioner, Sheikhupura."
13. I have not been able to understand as to why the principle of 'public policy' has been introduced and relied upon by the learned Sessions Judge in his judgment. On the last page of his judgment, the learned Sessions Judge has observed as under :- {{URDU TEXT}} I have pondered over this aspect of the case. My view is that the Law Courts should take into consideration the law of the land and not the 'public policy' because the consideration of 'public policy' will be dangerous in the criminal cases. If the public policy enters the portals of justice from the front door, the majesty of law shall go out from the back door. Moreover, the term 'public policy' is relative and, therefore, it may differ at different times with different people. Of course, the law Courts should consider the injunctions laid down in the Holy Quea'n and Sunnah. The Law Courts may also consider the principles which have been laid down by the eminent jurists but it will be certainly dangerous to introduce the element of 'public policy' in the Administration of Law.
Therefore, I am of the view, that the considerations of 'public policy' are irrelevant in the present case especially when no rape has been committed in this case upon Mst. Hafeez Nisar.
14. I think the two Courts below have not used their discretion properly in refusing bail to the petitioner. It is a case in which both the Courts below have used their discretion arbitrarily, perversely, capriciously and against the well-settled principles of law.
15. Under these circumstances, I set aside the impugned orders and accept this revision petition.
The petitioner-accused, Aziz Akbar, shall be enlarged on bail provided he furnishes bail bond in the sum of Rs, 10,000 (Rupees ten thousand) with the personal bond in the likeE amount with one solvent surety to the satisfaction of any First Class Magistrate, Mirpur, if he is not wanted in any other case. The Police diaries should immediately be returned to the Additional Advocate-General.
PLD 1986 A I K Shariat Court 89 {{URDU TEXT}} - 20-2-1986 - 5/1986 - J
(a) Offences Against Property (Enforcement of Hudood) Ordinance (VI of 1979)- -- Ss. 15 & 17- {{URDU TEXT}} - ref 33
(b) Offences Against Property (Enforcement of Hudood) Ordinance (VI of 1979)- Ss. 4& 15- {{URDU TEXT}} . Ref.
(C) Offence Against Property (Enforcement of Hudood) Ordinance (VI of 1979)- - --Ss. 15& 18- {{URDU TEXT}} #TBS fp 97]C: #TBE ref j u.)- .u.Ta.
(d) Criminal Procedure Code (V of 1898)- - -- S. 497- {{URDU TEXT}} 5
(e) Criminal Procedure Code (V of 1898)- {{URDU TEXT}}
(1) Criminal Procedure Code (V of 1898)- {{URDU TEXT}} #TBS _LkJL $jLi Lai J1 ;14 41,0- 4-2-1986 4.4i.s;'t; &; '141i J-'4 ire et #TBE {{URDU TEXT}} [p. 99)F
(g) Criminal Procedure Code (V of 1898)- --S. 497-Offences Against Property (Enforcement of Hudood) Ordinance (V1 of 1979)- {{URDU TEXT}} 2990
(h) Criminal Procedure Code (V of 1898)- {{URDU TEXT}} {{URDU TEXT}}