' Petitioner Jehangir through the instant petition has sought for post-arrest bail in the case F.I.R.
No,216, dated 24-7-2003 under sections 302/324/148/149/109, P.P.C. Registered with Police Station Sukheki, District Hafizabad.
2. Briefly the prosecution case as per F.I.R. Is that on 24-7-2003 at about 9-00 a.m. Jehangir armed with .8 mm rifle. Ghazanfar with .7 mm rifle, Sarfraz with 8 mm rifle, Zafar with 222 rifle and Dost Muhammad 8 mm rifle were ambush at a distance of about 3/4 acres from the village. Khurshid, the brother of the complainant, Shaukat and Qamar Zaman were on their way to Dera from the village. They when reached near them and saw them in ambush while armed, they started running on the road towards the west to save themselves. They chased them. They while doing so had remained firing on them. They at the distance of about 8/9 acres overtook and encircled them.
Jehangir with 8 mm rifle fired at Shaukat, which hit on his left hip joint Fida Hussain fired with rifle, which hit at his left flank. Ghazanfar fired with rifle at Khurshid, which hit him little below his left knee. The other accused remained firing straight at them with their respective weapons. Qamar Zaman saved himself while lying in the Khal. On the attraction of the people at the spot, they left the scene while firing. Shaukat succumbed to his injury in the way to the hospital.
3. It has been contended on his behalf that he has falsely been roped in on account of long standing enmity between them and the complainant party, that according to the F.I.R., he with rifle had fired at Shaukat deceased, which hit on his left hip joint while on his dead body no such injury had been found to be there; that he during the investigation by the local police as well as the Range Crime, Gujranwala had been found to be innocent; that nothing has been recovered from him; that all these facts make his case as one of further inquiry into his guilt; that he is behind the bars for the last about seven months and so far his trial has not commenced even; and that he is previous non-convict.
4. Conversely the learned counsel for the State assisted by the learned counsel for the complainant has opposed the petition on the ground that he is named in the promptly lodged F.I.R.; that he has been ascribed injury with 8 mm rifle to the deceased hitting on his left hip joint and the same has contributed towards his death and that though he has been found innocent by the local police but such finding of the police is not binding upon this Court while there is sufficient material available on the record to connect him with the crime.
5. I have carefully considered the submissions made from both the sides with the help of the available record.
6. According to the F.I.R. He had fired shot with 8 mm rifle at Shaukat deceased which hit at his left hip joint.
7. There has been found two injuries on the dead body of the deceased on the post-mortem examination. One of these is entry wound and the other it's exit. The exit wound has been described as injury No,2 in the report. The same was at left hip joint. It seemingly was not an independent injury. So apparently this is in conflict to the ocular version in respect of his role in the alleged incident.
8. Besides than this, he during the investigation by the local police has been found to be innocent.
He according to the Range Crime Police has not participated in the occurrence. Though opinion of the police is not binding upon Court but it is a relevant circumstance to be taken into consideration while determining such a question.
9. Admittedly nothing has been recovered from him. All these facts definitely render his case as one of further inquiry into his guilt and so the same is amply covered under subsection (2) of section 497, Cr.P.C.
10. He is behind the bars and stated to be previous non-convict.
11. In these circumstances, I find that the case for his enlargement on bail has been made out. The petition, therefore, is accepted and he is admitted to bail subject to his furnishing bail bonds in the sum of Rs,1,00,000 (Rupees one lac) with one surety in the like amount to the satisfaction of the learned Sessions Judge, Hafizabad/trial Court.
12. It is here made clear that any observation made above shall not influence the mind of the trial Court in any manner.
Bail granted.
20Q4 P Cr. L J 1257 [Federal Shariat Court] Before Zafar Pasha Chaudhry and S.A. Rabbani, JJ PATHAN and another---Appellants versus NASEER MUHAMMAD and another---Respondents Criminal Appeal No,42/K of 2000, decided on 5th December, 2003.
Offence of Zina (Enforcement of Hudood) Ordinance (VII of 1979)--- ----S. 12---Penal Code (XLV of 1860), Ss.342 & 377---Appreciation of evidence---Evidence of complainant, corroborated by Medical evidence and Chemical Examiner's report had proved that complainant was subjected to sodomy by accused persons---Even in view of evidence of complainant himself, no charge of kidnapping or wrongful confinement was proved on record--- Conviction of accused under S.12 of Offence of Zina (Enforcement of Hudood) Ordinance, 1979 and S.342, P.P.C. Had been set aside---Since charge of sodomy was proved against accused persons, they were convicted under S.377, P.P.C.---Accused were convicted after six years of commission of offence and were in jail for the last about 3-1/2 years---Before that accused also remained in custody for certain periods during the trial---Accused in circumstances were sentenced to the imprisonment already suffered by them accordingly. [p. 1258] A Masood Shehryar for Appellants.
Qasim Mir Jat for the State.
Date of hearing: 5th December, 2003.
' S.A. RABBANI, J.--- Appellants Pathan and Ramzan have been convicted by Ilnd Additional Sessions Judge, Khairpur under section 12 of the Offence of Zina (Enforcement of Hudood)
Ordinance, 1979 and section 342, P.P.C. Under section 12 of the Ordinance, they have been sentenced to 15 years' R.I. With a fine of Rs,10,000 and, under section 342,P.P.C. They have been sentenced to a fine of Rs,1,000 each. They have been given benefit of section 382-B, Cr.P.C. The conviction and sentences have been called in question by way of present appeal.
2. The charge against the appellants, and one Bashir, was that, on 28-11-1994, they kidnapped complainant Naseer Muhammad for unnatural lust and wrongfully confined him.
3. To prove the charge, prosecution examined, before the trial Court, six witnesses, including the complainant. In their statements, the accused/appellants denied the charge and stated that they have been falsely involved due to enmity and dispute over landed property.
4. Mr. Masood Shehryar, learned counsel for the appellants, submitted that the charge of kidnapping and wrongful confinement are not proved on record. He submitted that the appellants are young boys of the age of the complainant himself and they have already suffered a lot in this case. Mr. Qasim Mir Jat, learned State Counsel submitted that the evidence of the complainant and other witnesses, supported by medical evidence, is sufficient to prove the charge against the appellants.
5. The complainant Naseer Muhammad, a boy aged about 14 years, stated, before the trial Court, that Ramzan accused met him and asked him to accompany him and he accompanied him. He stated that, on the land of Bosal, Bashir and Pathan were also present and all of them committed sodomy with him. On the next day of the incident, the complainant was examined by Dr. Zulfiqar Ali Chano, who stated, before the trial Court, that he found injuries, in the form of contusions and abrasion, on the body of the complainant and he also found that the complainant was subjected to sexual intercourse. Swabs were sent to the Chemical Examiner and the Chemical Examiner detected semen on the swa bs. Thus, the evidence of the complainant corroborated by the medical evidence and Chemical Examiner's report, proves that he was subjected to sodomy and the offence was committed by the present appellants. However, in view of the evidence of the complainant himself, no charge of kidnapping or wrongful confinement was proved on record.
Accordingly the conviction of the appellants under section 12 of the Offence of Zina (Enforcement of Hudood) Ordinance, 1979 and section 342, P.P.C. Has been set aside through a short order already announced. Since the charge of sodomy is proved against the appellants, they are convicted under section 377, P.P.C. The offence was committed in 1994 and the appellants were convicted on 10-5-2000. They are in jail, for the last about 3-1/2 years. Before that also, they remained in custody for certain periods during the trial. In view of these facts, they are sentenced to the imprisonment already suffered by them, with a fine of Rs,2,000 each. In case of default of payment of fine, they shall suffer R.I. For one month. The appeal is allowed to the extent of this modification of conviction and sentences.