' Bail has been sought by the applicants who are facing trial in Crime No,26 of 2000 under section 302, Qisas and Diyat Ordinance read with sections 34 and 504, P.P.C. Of Police Station Sehwan, inter alia, on the ground that it is a case of no evidence, no specific role has been assigned to the applicants and apparent enmity and further that the deceased had a criminal record.
' Learned Assistant Advocate-General, has opposed bail on the ground that the incident was occurred on 29-3-2000 and reported within one hour, applicants were named in the F.I.R. With specific description of the ammunition they were holding and further that the said person had been duly implicated under section 161, Cr.P.C. By the witnesses. The recovery has been effected and they have been recently challaned in the case.
' I have heard the arguments and perused the record.
' From the F.I.R. It appears that all the accused persons are specifically mentioned with the weapons holding by them respectively. They were seen by the complainant and other witnesses duly armed with after they rushed to the place of incident inside the Dargah where brother of the complainant Dilawar was found dead on account of the fire-arm and hatchet injuries on his person.
' From the F.I.R. It also appears that there was old enmity between the parties. The contention of the learned counsel for the applicants that on account of enmity the applicants have been implicated cannot be ruled out. Indeed, enmity is a double-edged weapon which cuts both the way and this can very well be a motive for the applicants for committing the crime. As such fact can only be determined at the trial.
' Since the recovery has been effected from the applicants and even the medical report shows that the deceased Dilawar had received fire-arm injury and hatchet injuries on his person, it cannot be said at this stage that the medical evidence does not corroborate the ocular evidence, as was suggested by the learned counsel for the applicants. Besides the implication of the applicants in section 161, Cr.P.C. Statements by the witnesses. Since it is a recent case and no evidence has been recorded, do not feel inclined to form a different opinion than what has been expressed by the learned, Sessions Judge, while rejecting the bail application. Resultantly this application is also declined.
Application dismissed.
2003 P Cr. L J 385 [Lahore] Before Asif Saeed Khan Khosa, J AKBAR ALI---Petitioner versus THE STATE---Respondent Criminal Miscellaneous No,5183/B of 2002, decided on 13th September, 2002.
Criminal Procedure Code (V of 1898)--- ----S. 497---Offence of Zina (Enforcement of Hudood) Ordinance (VII of 1979), Ss.10, 11 & 16---Penal Code (XLV of 1860), S.380---Bail, grant of---Allegation regarding forcible abduction of a woman prima facie appeared to be inconsistent with the factum of alleged illicit liaison between the accused and the alleged enticee/abductee as mentioned by the complainant in the F.I.R. Itself and the fact that the woman in question had allegedly taken some iewellary and cash with her while leaving the complainant's house---Medical-legal certificate as to allegations of Zina-, bil-Jabr had not disclosed any marks of violence on any part of woman's body---Positive report of the Chemical Examiner regarding the said woman's vaginal swabs was not of much avail to the prosecution as the said lady was admittedly a married woman living with her husband---Alleged abductee had secured her release privately and had appeared before the Investigating Officer on her own---No stolen article had been recovered from the custody of the accused---Mere travelling of a person with a lady in a rickshaw in a crowded place does not by itself give rise to inference regarding such lady's enticement or abduction---Statement of alleged abductee under S.164, Cr.P.C. Had been recorded after a delay of four days after her private recovery--- Allegations of Zina-bilJabr with the lady were levelled only by the lady herself---Alleged abductee, according to her statement under. S.164, Cr.P.C. Had been travelling with the accused and his co- accused and had stayed with them at crowded places without raising alarm---Conduct of the woman (alleged victim) had cast a doubt on the entire prosecution story---Challan of the accused had already been submitted---Accused was granted bail in circumstances. [p. 386] A Ch. Imran Rana Chaddar for Petitioner. Kabir Ahmad Chaudhry for the Complainant. Muhammad Hanif Saleemi for the State.
' Through this petition Akbar All petitioner has sought post-arrest bail in case F.I.R. No,200 registered at Police Station Faisal Town, Lahore on 28-6-2002 for offences under section 16 of :he Offence of Zina (Enforcement of Hudood) Ordinance, 1979 and section 380, P.P.C. During the investigation section 16 was deleted and was substituted by sections 10/11 of the Offence of Zina (Enforcement of Hudood) Ordinance, 1979.
2. After hearing the learned counsel for the parties and going through the record it has been noticed that the F.I.R. In this case had been lodged with a delay of ten days. The alleged illicit liaison between the petitioner and the alleged enticee/abductee has been mentioned by the complainant in the F.I.R. Itself and, thus, the subsequent allegation regarding forcible abduction of the said lady prima facie appears to be inconsistent with the above mentioned factum recorded in the F.I.R. Even otherwise it had been mentioned in the F.I.R. That while leaving the complainant's house the lady in question had taken some jewellery and cash with her and this assertion also appears to be inconsistent with the subsequent allegation regarding her forcible abduction. As regards the alleged Zina-bil-Jabr committed with the alleged abductee it has been noticed that the medico-legal certificate in respect of the said lady does not disclose any mark of violence on any part of her body. A positive report of the Chemical Examiner regarding the said lady's vaginal swa bs does not appear to be of much avail to the prosecution as the said lady is admittedly a married lady living with her husband. It is not disputed that no semen grouping or matching has been undertaken in this case so far. The alleged abductee had not been recovered from the petitioner's custody and she had appeared before the Investigating Officer on her own. No stolen article was recovered from the petitioner's possession during the investigation of this case. Mere travelling of a person with a lady in a rickshaw in a crowded place does not by itself give rise to any inference regarding such lady's enticement or abduction. The allegations regarding forcible abduction of and commission of Zina-bil-Jabar with the lady in question are levelled only by the lady herself as the said offences had not been witnessed by anybody else. In this context it may not be out of place to mention here that according to her statement recorded under section 164, Cr.P.C.
On 3-7-2002 the alleged abductee had secured her release privately on 29-6-2002 but she had made the said statement before the, Magistrate after a delay of four days. According to the said statement the alleged abductee had been travelling with the petitioner and his co-accused and had stayed with them at crowded places without raising any protest whatsoever and had attracted attention of none. Such a conduct on the part of the said lady prima facie casts a thick cloud of doubt over the veracity of her statement. The challan in this case has already been submitted after completion of investigation and, thus, continued custody of the petitioner in jail is not likely to serve any beneficial purpose at this stage.
3. For what has been discussed above the case against the petitioner calls or further inquiry into his guilt within the purview of subsection (2) of section 497, Cr.P.C. This petition is, therefore, allowed and the petitioner is admitted to bail subject to furnishing bail bond in the sum of Rs,50,000 (Rupees fifty thousand only) with one surety in the like amount to the satisfaction of the learned trial Court.
4. Before parting with this order it is clarified that any observation made in the present order shall not prejudice the learned trial Court.