' Respondent No, 1 was released on bail by the learned Sessions Judge, Jhelum ride his order dated 4th of October, 1977 in respect of a case registered under section 452/376, P. P. C. The petitioner has now applied for its cancellation.
2. The occurrence in this case is said to have taken place on 6th of September, 1977 at 9-00 p.m. In village Neela, Tehsil and District Jhelum, while the report was lodged on 11th. The allegations were that respondent No, 1 raped the petitioner while she was alone in the house, as her father had gone away to Lyallpur to see her brother. Mohammad Zeman son of Baaz Khan Lambardar and Sher Zeman son of Allah Ditta were said to have been attracted to the spot on an alarm being raised by the petitioner and they saw respondent No, 1 in street while making good his escape.
3. Tte learned Sessions Judge found on the basis of the record before him that both the petitioner and respondent No, I did not have good reputation. He also noticed that there was no mark of violence on the body of the petitioner and that she' had lured the respondent No, 1 but raised the noise later. 'This was based on a plea taken by respondent No, 1 before the Police.
4. The learned counsel for the petitioner submitted that the learned Sessions Judge ran in error in considering the case-diaries and illegally granted bail simply for the reason that the first plea taken by the accused respondent found its support from the fact that no mark of violence was found on the body of the prosecutrix. It is contended that the petitioner was not a consenting party as the two witnesses were attracted to the spot on the alarm being raised by her and they saw the accused making good his escape. The existence of semen stains, as found on the swabs examined by the Chemical Examiner, was also advanced as a support for the petitioner's plea' It was also contended that the absence of injury is not necessarily a ground of consent and the same could be explained as laid down in Saleh Muhammad v. The State (1).
5. The learned counsel for the petitioner also blamed the respondent No, 1 for having abused the concession of bail inasmuch as that he had threatened or belaboured the witnesses and the father of the prosecutrix. Reference was made to Annexures 'D', 'F', 'G' and 'H' in support of these allegations.
6. The learned counsel for the respondent denied all the allegations end submitted that the parties are closely related Inter se and that the respondent and other relations were being falsely implicated in criminal cases in view of a dispute on partition of their property. He referred to various {{FOOT NOTE}}
(1) PLD 1966 Kar. 101 {{FOOT NOTE}} documents filed along with his reply in support. He further submitted that the fact that the allegations in the F. I. R. Are not correct is supported by an application by the father of the prosecutrix to the Martial Law Authorities where an entirely different version had been given.
7. The submission of this application was half-heartedly denied in Court by the learned counsel for the petitioner, though the learned counsel for the respondent vehemently contended that two other persons have been involved in the same case In view of the same application. In his reply submitted by respondent No, 1, it is stated therein that the petitioner is an old woman and has falsely involved the respondent No,
1. She has two sons aged 26 and 18, the elder of whom is in the F.
S. F. The respondent No, 1 on the other hand is stated to be only 25 years of age.
8. Without going into the controversy being raised by the parties as to their partition dispute, litigation and cross allegations, I am of the view that the learned Sessions Judge exercised his discretion in a sound and judicial manner In granting bail to the respondent No,
1. The F. I. R. In this case had been lodged about 5 days after the occurrence. There was no mark o violence on the body of the prosecutrix and it is prima facie difficult to believe, that if she was not a consenting party, the respondent could have achieved his object without having attracted certain visible marks on his body in proof of resistance, offered to him. There could also be marks of violence on the rest of the body of the prosecutris and not necessarily only on her private parts. It was, therefore, a case in which it could not be safely said that the material considered by the learned Sessions Judge was sufficient to that there did appear reasonable grounds for believing that the respondent No, 1 had been guilty of an offence punishable with imprisonment for 10 years or more.
It was a case of further inquiry of evidence and thus th order of the learned Sessions Judge is not exceptionable.
In view of the above, this application is dismissed. Petition dismissed.
1978 F Cr. L J 389 [Karachi] Before G. M. Shah, J QALANDAR KHAN-Applicant versus THE STATE-Respondent Criminal Miscellaneous No, 487 of 1977, decided on 30th October 1977.
Criminal Procedure Code (V of 1898)- -- S. 498-Petitioner, accused of committing dimity at gun point, correctly pointed out at identification parade and further leading to recovery of identificable looted money-Bail refused, in circumstances. [p. 391]A Abdul Aziz for Applicant.
Nawaz Khan Marwat for Respondent.
A. S. Shaikh, Mott. A.-G. For the State.
' When this application came up for hearing before me on behalf of applicant Qalandar Khan, I found that the to coaccused Mohammad Sharif was based on erroneous consideration and improper appreciation of evidence, I had issued Suo Moto notice to him on 15.6-1977 to show cause, why to him by the learned Additional Sessions Judge should not be cancelled. ' this order will dispose of, both the bail application filed on behalf of Qalandar Khan, as well as, the show-casue notice issued to respondent Mohammed Sharif?.
Both, the applicant Qalandar Khan and respondent Mohammed Sharif have been sent up to stand trial for offences under section 394/397/34/120-B. P. P. C. In the Court and the case is at present pending disposal in the trial Court. No evidence has so far been recorded. In the F. I. R. Lodged by Ahmed Munna Cashier of Dada Bhoy Ceramic Industries situated in the S.I.T.E. Area, it was alleged that on 4-9-1976, the complainant had gone to Habib Bank, S. I. T. E. Branch, for encashment of a cheque for Rs, 55.000. After he got the cheque cashed, he kept the money in a black leather bag and sent for a car from the factory, which was driven by Rasool Bux, who reached the Bank at about 9-25 a.m. The complainant kept the leather bag with himself and sat next to the driver, in the front seat of the car and left for the factory. At about 9-33, when they reached near Ceramic Industries and Alamgir Rayon Mills, a taxi came from the opposite direction and stopped in front of their car. From the taxi, three persons came down. They approached the car occupied by the complainant. One of those persons stood in front of the car and the other came on the side, where the complainant was sitting. The third stood on the other side where the driver was sitting.
Whereas, the fourth was the taxi driver, who was sitting in the taxi with his face muffled. They had pulled out their revolvers. The one on the side of the complainant asked him, on the point of the revolver, to hand over the bag containing cash, to him. When the complainant refused to do so, be was given fist blows on his face, resulting in injuries on his mouth. The black leather bag, containing cash, was forcibly snatched from him. They sat in the taxi and drove away. In the F. I. R. Lodged at 11-20 a.m. On the same day at S. I. T. E. Police Sration, discrlption of all the accused was given by the complainant. The case was subsequently transferred to the C. I. A. For investigation.
' The applicant Qalandar Khan was arrested on 12-94976 from a hotel near City Railway Station.
From his possession Re. 33,300 with the same black leather bag containing cub. Were recovered.
The applicant was found in possession of a revolver which was also secured from him. The rest of the accused remained absconding.
' Respondent Mohammad Sharif was, however, later on, arrested from S.I.T.E. On 22-9-1976 and from his possession cash of Rs, 10,800 was recovered. Accused Badshah Khan was arrested on 5-10- 1976. During the investigation, it transpired that Badshah Khan was an ex-employee of the firm Messrs Ceramic Industries. Later on, Rahim Khan, the fourth accused, was also arrested ; whereas Bakht Saud, the fifth accused, is still untraceable.
' During the investigation, the respondent Mohammad Sharif had made a judicial confession on 6/10-1970. Both, the applicant Qalandar Khan and respondent Mohammad Shari?, were also put to identification test, through the eye-witnesses on 2310 1976, and they were correctly picked out.
' Badshah Khan, an ex-employee of the firm Messrs Ceramic Industries was allowed bail on 2-11- 1976 by the learned Sessions Judge, on the ground that the allegation against him was only of standing at that time, at the place of occurrence, which allegation was made in the judicial confession made by co-accused Mohammad Sharif.
' The bail application of applicant Qalandar Khan came up for hearing, before the learned VIfth Additional Sessions Judge, who was pleased to reject the same, on the ground that the recovery of a sum of Rs, 33,300 was made from him and also that he was identified by the three eye-witnesses in the test. By another order dated 14-5-1977 the same learned VIIth Additional Sessions Judge was pleased to grant bail to respondent Mohammad Shari?, in spite of the fact that a recovery of Rs, 10,800 was made from him and he too was picked out In the identification test along with Qalandu ' Khan. It was also admitted that he was absconding from Karachi and was arrested in Swat. He had also made a judicial oonfession incriminating himself therein, as well as, the co-accused.
' The main argument for the grant of bail to Qalandar Khan by Mr. Abdul Aziz, the learned counsel is that the co-accused respondent Mohammed Sharif was allowed bail, against whom the pieces of evidence were the same as against Qalandar Khan. He also submitted that Mohammed Sharif had also made a confession, incriminating himself, whereas, no such piece of evidence was available against Qalandar Khan.
' When I was satisfied that there was prima falic sufficient evidence against respondent Muhammed Sharif, the notice was issued to, him to show cause, why the to him should not be cancelled.
' I have heard Mr. Abdul Asia, Advocate for Qalandar Khan, Mr. Mir Nawaz Khan Marwat for respondent Muhammed Sharif and the learned Assistant Advocate-General for the State at great length.
I do not think this is a fit case for grant of bail when there is evide, that the cash amount of Rs, 55,000 was robbed on the point of revolver and in the course, injuries were caused to the complainant Ahmed Munna. There is also evidence of the Cashier of the Habib Bank S. I. T. E. Brand Ghulam Abbas, who had affixed the bank stamps on the note bundles, o of which Rs, 33,300 were subsequently recovered from the applicant Qala Khan along with the black leather bag, and Rs, 10,800 were recovered from respondent Mohammed Sharif. Under the circumstances, the bail applisado of Qalandar Khan is dismissed.
' When the show-cause notice was issued to respondent Mohammed Shari?, he appeared on 29- 6-1977, along with his counsel, Mr. Mir Nawaz Khan Marwat, who requested for time, as he had been engaged on that day and at his request, the matter was adjourned. When the application came up for hearing on 4-8.1977, both, the respondent, as well as, his counsel were found absent. Afresh notice was issued to the respondent. Oa the next date fixed on 7,8-1977, again the respondent Muhammed Shari? Had remained absent and bail able warrants were issued against him for 2-10- 1977, but he was again found absent. Non-bailable warrants were accordingly issued against him.
Mr. Abdul Asia, the learned counsel appearing foe the applicant Qalandar Khan, made a statement that the respondent Mohammad Shari? Was also not appearing in the trial Court and had absented himself since 4-8-1977. This fact was also admitted by Mir Navaz Khan Marwat, appearing for the respondent Mohammad Sharif, who had put-inappearance on 7-8-1977 and stated that he had no intimation or instructions from respondent Mohammad Shari? And could not make any statement about his absence. In the meantime, respondent Mohammad Sharif was arrested from Swat and was produced in the Court on 23-10-1977.
' As a result of the above discussion, I do not find any justification for the grant of bail to the respondent Mohammad Sharif. The to him by the learned VIIth Additional Sessions Judge is accordingly cancelled.