Muhammad Ashfaq vs State etc.

Form No:HCJD/C-121

ORDER SHEET

IN THE LAHORE HIGH COURT, LAHORE

JUDICIAL DEPARTMENT

Case No. Crl. Misc. No.8464-B of 2014

Muhammad Ashfaq Versus The State etc.

S.No. of order/ Date of order/ Order with signature of Judge and that of Proceedings Proceedings Parties of counsel, where necessary.

20.08.2014. Rana Muhammad Rizwan, Advocate along with the petitioner in Crl. Misc. No.8464-B of 2014. Mr. Arshad Ali Bhatti, Advocate for the petitioner in Crl. Misc. No.9742-B of 2014.

Mr. Muhammad Arshad Farooqi, Deputy Prosecutor General along with Siraj Din ASI with record. Mr. Waseem Abbas Gondal, Advocate for the complainant.

This order shall dispose of Crl. Misc. No.8464-B of 2014 titled as Muhammad Ashfaq versus The State etc. filed by Muhammad Ashraf, petitioner for bail before arrest and Crl. Misc. No.9742-B of 2014 titled as Jehanzaib versus The State etc. filed by Jehanzaib petitioner for bail after arrest as both these petitions have arisen out of same case FIR No.264 dated 31.03.2014, offence under Sections 376 and 496-A PPC registered at Police Station Harbanspura District Lahore.

2.Allegation against the petitioners is that they along with their co-accused enticed away Mst. Anam Munir and committed rape with her.

3.I have heard the arguments of learned counsel for the parties, learned Deputy Prosecutor General and perused the record with their able assistance.

4.I have noticed that the victim Mst. Anam Munir filed a suit for jactitation of marriage in which she

Crl. Misc. No.9742-B of 2014

narrated the occurrence of her abduction and commission of zina with her by co-accused Adil Shahazad defendant in the suit and she did not allege the commission of zina with her by the present petitioners. Similarly, in her statement recorded under Section 161 of the Code of Criminal Procedure by the Investigating Officer on 07.04.2014 after her return to her parents on 03.04.2014, she has not specifically alleged commission of zina by Muhammad Ashfaq petitioner. Her statement under Section 164 of the Code of Criminal Procedure was recorded with an unexplained delay of seven days after her return to her parents. During the investigation, according to Siraj Din ASI/Investigating Officer, vide his case diary dated 06.06.2014, the claim of valid Nikah of the alleged victim Anam Munir with co-accused Adil Shahzad has been found correct. In this regard, he also recorded the statement of Secretary Union Council besides consulting the record. Jehanzaib petitioner remained on extensive physical remand with the police but neither alleged weapon i.e. pistol was recovered from him nor any other incriminating evidence could be brought on record against the petitioners. As the factum of Nikah is found correct during the course of investigation, prima facie, the allegation of commission of zina against the present petitioners in presence of Adil Shahzad co- accused who joined the investigation and took the plea of valid marriage with Mst. Anam Munir, the alleged victim, requires further inquiry. Even, it is evident from the record available with the Investigating Officer that the complainant party including the victim refused to cooperate with the police with regard to the DNA test. These circumstances are sufficient to make the case of Jehanzaib petitioner one of further inquiry into his guilt as is envisaged under Section 497(2) of the Code of

Crl. Misc. No.9742-B of 2014

Criminal Procedure. He is behind the bars since his arrest. No useful purpose is likely to be served by keeping him behind the bars for an indefinite period when conclusion of the trial is not in sight. Bail after arrest to Jehanzaib petitioner cannot be withheld as punishment. In the abovementioned circumstances, the possibility of false implication of Muhammad Ashfaq petitioner in this case due to his friendship with the main accused Adil Shahzad cannot be ruled out. He is having no previous criminal record. Nothing is to be recovered from him. So, keeping in view the peculiar features of this case, sending him behind the bars to come out on post arrest bail after a few days does not look reasonable. Seeking light from the cases of Muhammad Aslam versus State (PLJ 1999 Cr. C. Lahore 1504) and Muhammad Ramzan versus Zafar Ullah and another (1986 SCMR 1380), both Crl. Misc. No.9742-B of 2014 and Crl. Misc. No.8464-B of 2014 are accepted. Jehanzaib petitioner is admitted to bail after arrest whereas, ad-interim bail before arrest already allowed to Muhammad Ashfaq petitioner is confirmed subject to their furnishing bail bonds in the sum of Rs.1,00,000/- each with one surety each in the like amount to the satisfaction of the learned trial court.

(Syed Shahbaz Ali Rizvi) Judge

APPROVED FOR REPORTING:

Judge ‘Javaid’