Ashfaq Hussain vs State etc.

Criminal Misc.No. 9413-B/2013

Ashfaq Hussain. The State etc.

5.28.8.2013 Mr. Zulfiqar Ali Dhudhi, Advocate with the petitioner. Mr. Aqeel-ur-Rehman Khan, Deputy District Public Prosecutor with Muzaffar Khan, S.I. with record. Mr. Muhammad Habib Ullah, Advocate for the complainant.

Through the instant petition, Ashfaq Hussain, petitioner has sought pre-arrest bail in case F.I.R. No. 180 dated 8.6.2013 registered under sections 376/511 P.P.C. at Police Station 18-Hazari, Jhang.

2.The F.I.R. was registered on the statement of one Mst. Parveen Bibi, complainant by stating that in the night between 4/5.6.2013 she was sleeping in her house along with minor children and her husband was away from the house. At about 12.30 a.m. (midnight) the complainant felt that someone caught hold her arms for the purpose of committing zina with her. Upon hue and cry, Ghulam Abbas rushed at the spot and tried to caught hold the accused and identified him in the light of electric bulb. On seeing the witnesses, the petitioner fled away while extending threat of life and as such the petitioner was nominated in the F.I.R.

3.Learned counsel for the petitioner has contended that the petitioner has falsely been involved in this case

with malafide intention; that there is delay of 4 days in lodging the FIR and no plausible explanation has been given in the FIR; that the petitioner has joined the investigation and during investigation, the DSP has come to the conclusion that the offence under section 376 and 511 P.P.C. are not attracted in the case of the petitioner and the same were deleted and section 452 P.P.C. has been added; that there was some dispute of money in between the husband of the complainant and the petitioner; that he is no more required to police for further investigation and as such the petitioner is entitled to the concession of bail.

4.On the other hand, the learned Law Officer assisted by the learned counsel for the complainant have vehemently opposed the bail petition by stating that the petitioner is nominated in the F.I.R. with specific role; that there is no ill-will or grouse on part of the complainant to rope the petitioner in this case and that sufficient incriminating material is available on the record to connect the petitioner with commission of the offence, therefore, he is not entitled to the concession of bail.

5.I have heard the learned counsel for the parties and have gone through the record.

6.Bail before arrest is meant to protect the innocent citizens found to have been involved malafidely and with ulterior motives but in the instant case the petitioner while armed with pistol trespassed into the

house of the petitioner at midnight with intention to commit zina with her. There is no denial of the fact that the petitioner went to the house of the complainant at 12.30 a.m. and the time of visit shows intention of the petitioner. During investigation, it was proved that the petitioner went to the house of the complainant at 12.30 a.m. and the Regional Police Officer had no authority to delete the offence under Section 376 and 511 P.P.C. and added Section 452 P.P.C. The opinion of police cannot be considered as legal evidence in a case. All the prosecution witnesses including the complainant had clearly stated that the petitioner is involved in the case. Reliance has been placed on the case reported as Pervaiz Iqbal and another v. The Stae (2000 SCMR 1599) wherein it has been observed by the Apex Court:- “that opinion of the police is not binding upon the Courts and cannot be made the only basis for grant relief, although same is entitled to due weight. The Court, however, is empowered to examine the material which has been made the basis for forming such an opinion and it is for the Court to accept or reject the opinion on examining whether it is based on relevant material and considerations.

7.There is sufficient incriminating material available on record to connect the petitioner with the commission of alleged offence and statement of the complainant/victim also supports version of the prosecution. The offence committed by the petitioner is heinous in nature and is punishable with death or

imprisonment less than ten years or more than 25 years and fine, as such he is not entitled to extra ordinary relief of pre-arrest bail.

8.For the foregoing reasons, this petition having no force, is hereby dismissed.

(Aalia Neelum) Judge Approved for reporting.

Judge

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