Rape and abduction. 2016 y L r 1259 [Sindh] Before Naimatullah Phulpoto, J

Criminal Procedure Code (V of 1898)---

 

----S. 497(2) & (5)---Penal Code (XLV of 1860), Ss. 354-A, 365-B, 376 & 452---Assault or use of criminal force to woman and stripping her of her clothes, kidnapping, rape and house-trespass after preparation for hurt, assault or wrongful restraint---Bail, cancellation of---Case of further inquiry---Assessment of evidence---Principle---Accused were police officials who alleged to have kidnapped minor sisters of complainant and raped one of them while rape was attempted upon the other---Trial Court released accused persons on bail on the ground that there were discrepancies in statements of both the girls which were contradictory to medico legal report---Validity---To decide fate of bail application, tentative assessment of material available on record was to be considered but it did not mean that Trial Court to find out discrepancies of minor nature, while considering ground of further inquiry into the guilt of accused---Offence against which accused were charged was of heinous nature---On tentative assessment of evidence it was not possible to hold that case would fall within the scope of further inquiry---Every hypothetical question which could be imagined would not make it a case of further inquiry, simply for the reason that the same could be determined after evaluation of evidence---No sufficient grounds existed for further inquiry into the guilt of accused with which they were charged---Some contradictions in between ocular and medical evidence were noticed, which could not be considered prior to recording of evidence, moreso with regard to heinous offence which fell within the purview of prohibitory clause of S. 497, Cr.P.C.---Bail was cancelled, in circumstances.

 

            Shoukat alias Shafqatullah v. The State PLD 2012 Sindh 174; Muhammad Ramzan v. The State and others 2012 MLD 579; Muhammad Ramzan v. The State and another 2011 YLR 1569; Abdul Ghafoor v. The State and another 2012 MLD 142; Haji Ahmad v. The State 1975 SCMR 69 and Haji Gulu Khan v. Gul Daraz Khan and another 1995 SCMR 1765 ref.

 

            Rasool Bux I. Siyal for Applicant (in Cr. Transfer Application No. 13 of 2014 and in Cr. Misc. Applications Nos. 812, 813 and 814 of 2013 and C.P. No. S-3450 of 2013).

 

            Alam Sher Bozdar for Respondents (in Cr. Transfer Application No. 13 of 2014 and in Cr. Misc. Applications Nos.812, 813 and 814 of 2013).

 

            Ghulam Shabir Dayo for Respondents (in C.P. No. S-3450 of 2013).

 

            Zulfiqar Ali Jatoi, DPG for the State.

 

            Shahabuddin Shaikh, State counsel (in C.P. No. S-3450 of 2013).

 

            Date of hearing: 13th April, 2015.

 

ORDER

 

            SYED MUHAMMAD FAROOQ SHAH, J.---By this single order, the captioned matters arising from common crime are taken and decided together.

 

2. Undoubtedly, the institution of police is to regulate preservations of order and enforcement of law but the facts of the present case transpire that guards being protectors of public security and tranquility are involved by the complainant without any animosity in heinous offence of committing "Zinna"/attempted to commit "Zinna" to his teenager sisters after making their abductions on gun points, which act tends to shake the legal, moral and religious criminal administration system, more particularly, specific role in commission of offence have been assigned to the accused persons, which is also a crime against the society.

 

3. By order dated 12.11.2013, accused police inspector Abdullah s/o Muhammad Khan Awan, who was previously posted at police station Raunti, was admitted on bail in case crime No. 69/2013 of police station Khambhra, by learned IV-Additional Sessions Judge, Mirpur Mathelo. In penultimate paragraph, the learned trial court has observed that statement of both the ladies under sections 161 and 164, Cr.P.C. and MLC are contradictory and on such ground the concession of bail was extended to the accused, being a case of further inquiry, failing within the purview of section 497(2), Cr.P.C.; more or less on similar grounds, the bail was granted to another accused/ police constable Arbelo vide order dated 12.11.2013. Another police constable/accused Abdul Razzak, who was also involved in aforementioned crime has also been granted the concession of bail by the trial court on the same date and almost on the same ground. In para No.2 of all aforementioned bail orders the learned court has narrated the facts in the following manners:-

           

"Precisely, facts disclosed in the FIR in some detail are that the complainant had received petition order in Cr. Misc. Appln. No.1566 dated 12.10.2013 from Sessions Judge, Ghotki and incorporated the facts of petition, wherein one Noor Hassan son of Hassan Ali by caste Rajput R/o Khambhra, Taluka Ubauro disclosed that he had six sisters out of them three were married and Mst. Najma & Mst. Asma both major ones and Mst. Naila aged about 8/10 years were living with him. Petitioner had further alleged that on 10.10.2013 at about 07-00 p.m. in the evening, he was present with his sisters and mother when PC Abdul Razaque Malik and other un-identified police constables forcibly entered into his house with weapons in their hands and who took hold of Mst. Najma as well as Mst. Asma and drove them to a white car outside the house and left, thereafter, Noor Hassan raised cries whereupon villagers gathered and he had narrated them the whole incident and they all went to P.S Khambhra where S.H.O, namely, Abdullah Awan met with them to whom they disclosed the incident and who by giving hopes as well as directing them to keep patience promised return of both Mst. Najma and Mst. Asma but had been keeping them on hopes. On 11.10.2013 at about 09/10 hours, the said S.H.O summoned the petitioner to take back his sisters as such he went at the residence of S.H.O. where his both sisters were present and he brought them to the house where Mst. Asma told him that S.H.O. Abdullah Awan had forcibly summoned her in his room and forcibly committed rape, then he left her there unconscious whereas Mst. Najma told him that RC Arbelo and P.C. Abdul Razaque along with two un-identified accused forcibly called her and put off her clothes whereupon she raised cries that she was observing menstrual periods who seeing the bleeding left her then the petitioner went to P.S where the S.H.O extended threats of his implication in false cases where after petitioner went to the Sessions Judge/Justice of Peace, Ghotki there he filed petition asking for issuance of letter for medical examination.

 

4. Arguments heard. Record perused.

 

5. Mr. Rasool Bux I. Siyal, representing the applicant/complainant Noor Hassan Rajput, brother of victims, at the very outset submits that the aforementioned heinous act of the police personnel has developed sense of insecurity amongst the people, that the police personnel who being responsible to safeguard the law are not suppose to do such a heinous offence to fulfill their bodily lust. Learned counsel submits that such violent offence of brutality amounts to a barbarian act, committed by S.H.O/police inspector Abdullah Awan, who forcibly raped Ms. Asima and other two co-accused facilitated him and they have also attempted to commit rape upon Ms. Najma who was observing menstrual periods hence she had been let-off. It is submitted that the medical opinion supports the version of complainant side. It is contended that all the police officials/accused mischievously just to save their skin have involved both victims in Crime No. 68/2013 at P.S Khambhra, who were proved to be innocent during course of investigation and such report was furnished by the Investigation Officer before the competent court of law as well as before this court and this court has also taken a serious notice against such act.

 

6. To support of his contentions, learned counsel placed his reliance on the cases of Shoukat alias Shafqatullah v. The State (PLD 2012 Sindh 174), Muhammad Ramzan v. The State and others (2012 MLD 579), Muhammad Ramzan v. The State and another (2011 YLR 1569-Lahore), Abdul Ghafoor v. The State and another (2012 MLD 142-Peshawar), Haji Ahmad v. The State (1975 SCMR 69), Haji Gulu Khan v. Gul Daraz Khan and another (1995 SCMR 1765).

 

7. Conversely, learned A.P.G has supported the arguments of learned counsel for the\ applicant. Arguments advanced by other side have also been considered.

 

8. It appears that by an order dated 20.01.2014, passed by this Court in C.P. No. S 3450/2013, the DIGP Sukkur was directed to submit the detailed reports in view of observations recorded by Hon'ble Supreme Court that any police official/officer, if involved in a criminal case, he may not be posted as S.H.O., hold any field posting till disposal of his criminal case. The comments were also called from the trial court, who has granted bail to the above named accused persons. Learned IV-Additional Sessions Judge, Mirpur Mathelo, by raising no objection to transfer the case to any other court, submitted that he has issued legal process (B.Ws) against the prosecution witnesses and that it was upto to the applicant/victims to explain as to why they had not attended the court for recording their respective evidence. Learned Sessions Judge commented upon the transfer of case wherein the applicant has stated that they have genuine apprehension that "fair and impartial trial of the case cannot be held by respondent No.1 (IV-Additional Sessions Judge, Mirpur Mathelo)", who is allegedly acting in strenuous consideration, more particularly, the respondent No.2 is a very influential police official, is publicly known as drunkard and accomplice of criminals having un-fettered powers of police officer, who mis-used his powers and position and committed offences involving moral turpitude. It is further averred in the transfer application that the accused persons are advancing threats of dire consequences to the applicant and victim ladies and other witnesses to withdraw from the prosecution cases registered against them, otherwise, the PWs would be booked in false and planned FIRs. In such context C.P No. S-3450/2013 has also been filed in this court. The applicant in para No.11 of the transfer application, submitted that the accused are not attending this court and are causing pressure and harassment upon complainant, in result of which, the applicant and victim ladies are unable to get shelter in their parental house and are hiding hither and thither in order to avoid harassment and humiliation of police and are unable to pass peaceful life as guaranteed by the law.

 

9. It is the case in which two young girls were not only abducted, humiliated, harassed and disgraced but one of them was subjected to sexual intercourse by the lust of the accused, I am, therefore, of the view that while granting bail to the respondents, the learned trial court acted illegally and in violation of the settled principle of grant of bail. It is true that to decide the fate of bail application, tentative assessment of the material available on record is to be considered but it does not mean that the trial court to find out discrepancies of minor nature, while considering the ground of further inquiry into the guilt of the accused. Admittedly, the offence against which the respondents are charged is of heinous nature.

 

10. On tentative assessment of evidence it is not possible to hold that the case would fall within the scope of further inquiry under section 497(2), Cr.P.C. Every hypothetical question which may be imagined would not make it a case of further inquiry, simply for the reason that the same can be determined after evaluation of evidence; moreso, there are no sufficient grounds for further inquiry into the guilt of the applicant/accused with which they are charged. In the instant case the fact that there is some contradiction in between ocular and medical evidence cannot be safely considered prior to the evidence, more particularly, with regard to heinous offence which falls within the purview of prohibitory clause of section 497 of Cr.P.C.

 

11. For the foregoing reasons, the impugned orders whereby the bail was acceded to the respondents are hereby cancelled. Resultantly, the Cr. Misc. Applns. Nos.812/2013, 813/2013 and 814/13 are allowed. Bail bonds of accused are cancelled.

 

12. Keeping in view aforementioned facts and circumstances, the Deputy Inspector General of Police @ Sukkur and respondent No.4 in C.P No. S-3450/2013 are directed to restrain the nominated accused in Crime No. 69/2013 or any person acting on their behalf, not to cause harassment to both the victim ladies and their relatives including family members, who shall be provided legal protections of life, honour and property in accordance with law and as guaranteed by the Constitution of Pakistan as well. C.P No. S-3450/2013 is disposed of accordingly.

 

13. The complainant including victims have shown apprehension that fair and impartial trial of the case cannot be held before the trial court/respondent No.1, who according to them is acting in extraneous manner, more particularly he has issued bailable warrants against the complainant and victim girls and in his comments, the learned IV-Additional Sessions Judge, Mirpur Mathelo has failed to show any sufficient reasons or plausible cause for issuance of B.Ws against the victim girls and their brother, which is a sufficient ground for withdrawal of Sessions Case No. 461/2013 from his file. Consequently, the Criminal Transfer Application No. 13/2014 is allowed. Sessions Case No.461/2013 is withdrawn from the file of learned IV-Additional Sessions Judge, Mirpur Mathelo and transferred to the learned Sessions Judge Ghotki, with directions to the learned Sessions Judge Ghotki to proceed the case strictly on merits, by adopting the mode of fast track and decide the case expeditiously, he shall adopt all necessary endeavour to provide legal protections to the prosecution witnesses, in accordance with law.

 

14. All the aforementioned cases are decided in the manner indicated above.

 

MH/N-20/Sindh                                                                                   Order accordingly.

 

 2016 P Cr. L J 1362 [Gilgit-Baltistan Chief Court]

 Before Yar Muhammad, J

 

ADNAN ALI and others---Petitioners

 

Versus

 

The STATE---Respondent

 

Criminal Miscellaneous Nos. 143 and 160 of 2015, decided on 8th January, 2016.

 

Criminal Procedure Code (V of 1898)---

 

----S. 497--- Penal Code (XLV of 1860), Ss. 170, 354-A, 376, 506 & 34---Personating a public servant; assault or criminal force to woman with intent to outrage her modesty; rape; criminal intimidation; common intention---Bail, refusal of---Question as to whether hymen rupture of victim was old or fresh was regarded as evidence---¬Record, in the present case showed that the victim had been subjected to Zina in brutal manner by the accused persons---Victim first appeared before the police and then before the court and made detailed statement about her grievance, fully implicating the accused and confirming the contents of the FIR---Statement of the victim, that the accused had taken her away forcibly from her house and committed Zina with her against her will, was sufficient to suggest that the accused had committed the offence, when any animosity between the parties for false implication was absent---Admittedly, at the time the victim was medically examined the hymen was not intact---Medical report was, however, silent as to whether hymen rupture was old or fresh, but the same would be determined by the trial court---Victim of rape, who resided in a narrow society where normally such person avoided to expose herself and to take the risk of such blame, especially when the victim was still unmarried; presumption would be that the victim would not have dishonoured herself or her family without any reason---Accused persons had committed a heinous offence which was hit by the prohibitory clause of S. 497, Cr.P.C.---Bail application was declined accordingly.

 

            Latif Shah and Manzoor Hussain for Petitioner (in Cr. Misc. No.143 of 2015).

 

            Dy. Advocate-General for the State (in Cr. Misc. Nos.143 and 160 of 2015).

 

            Saeed Iqbal for the Complainant (in Cr. Misc. Nos.143 and 160 of 2015).

 

            Sherbaz Ali for Petitioner (in Cr. Misc. No. 160 of 2015).

 

            Date of hearing: 8th January, 2016.

 

ORDER

 

            YAR MUHAMMAD, J.---By this single order, I will propose to dispose of Criminal Miscellaneous No. 160/2015 titled Asif Hussain v. The State and Cr. Misc. No. 143/2015 titled Adnan Ali etc. v. The State as these applications have arisen from common FIR.

 

2.         Through these applications the petitioners have prayed for their enlargement on bail who are now in judicial lock-up Gilgit facing trial of a criminal case vide FIR No.65/2015 registered under sections 354-A, 170, 506-II and 376/34, P.P.C. at Police Station Jutial, Gilgit.

 

3.         Briefly the prosecution case as divulging from the FIR is that on 29-7-2015 at about 21:30 hours victim Zahida Aziz submitted an application to SHO of the Police Station stating that on 26-7-2015 she was available in her home situated at Zulfiqarabad, Gilgit that at about 7 p.m. accused Adnan Ali contacted her through mobile phone and told her to came out from the house with a pretext of some important job. On this she came at the gate of the house where she saw accused Zulfiqar and one other person exposing himself to be a police personnel besides accused Adnan were present with a car. The accused put her in the car on gun-point prohibiting her not to cry otherwise they will kill her and thereafter the accused turn by turn committed Zina with her. They also made slaps to her and also took pictures and warned her if she told about the offence to anyone, the pictures will be shown to her family members. They took her to University road while committing Zina and later on dropped in her home.

 

4.         The learned counsel for the petitioner while arguing tried the case to make one of further inquiry and in this regard mainly submitted that the FIR has been registered after three days of the occurrence and no plausible explanation in this regard has been made. They contended that statement of the victim has been recorded under section 164, Cr.P.C., and also the victim has been medically examined and obtained medical report thus, presumed that under the attending circumstances both medical report and the statement of the victim should be supportive and corroborative to each other but same is missing in the instant case for the reason that victim claiming virginity while the medical report shows that the vagina of the victim admitted two fingers easily and so much so no other sign of violence was found on her body despite the fact that hymen was not intact and if presumed that hymen was ruptured three days before there should have bleeding of fresh rupture about which the medical report is silent, therefore, the hymen was old rupture and claim of virginity and commission of rape is highly doubtful.

 

5.         The learned Dy. Advocate General assisted by private counsel on the other hand contended that delay in lodging of FIR is no ground in like cases. The victim has lodged the FIR against the accused and subsequently while appearing before a Magistrate has recorded her statement under section 164, Cr.P.C. involving the present accused/petitioners in the offence and at this stage the only statement of the victim is enough to decline the bail matter.

 

6.         I have carefully considered the submissions made by the learned counsel for the parties in the light of material made available to me for consideration. The evidence gathered by the I.O. at this stage normally is assessed tentatively avoiding deeper appreciation which would be made at trial. The victim girl who resides in a narrow society where normally such person avoids to be exposed herself and to take risk of such blame specially when the victim is still unmarried but in this case, as the record shows, the victim has been subject in zina in brutal manner by the accused, she even couraged to appear before a police officer first and then before a court of competent jurisdiction and made a detailed statement about her grievance, fully implicating the accused and confirming the contents of the FIR. According to the statement of the victim girl, she was taken away forcibly from her home and committed zina with her by the accused against her will and in such cases the statement of the victim is sufficient to suggest that the accused have committed the alleged offence when the same is considered coupling with the fact that any animosity between the parties, is absent for false implication. It is presumed that the victim would have not dishonoured herself or her family without any reason. The accused have committed a heinous offence was hit by the prohibitory clause of section 497, Cr.P.C.

 

7.         So, for the medical report being silent about the hymen rupture as to whether the same was old or fresh, same would be determined by the trial court but it is admitted that at the time when the victim was medically examined the hymen was not intact.

 

8.         For the reasons what have been discussed above, I find no merits in these petitions, therefore, dismissed.

 

SL/8-GB                                                                                                          Bail declined.

 

 

 

2015 S C M R 825 [Supreme Court of Pakistan]

 

Present: Amir Hani Muslim and Ijaz Ahmed Chaudhry, JJ

 

NASREEN BIBI---Petitioner versus FARRUKH SHAHZAD and another---Respondents

 

Criminal Petition No. 489 of 2014, decided on 3rd March, 2015.

 

            (On appeal against the judgment dated 11-7-2014 passed by the Peshawar High Court, Abbottabad Bench in Cr. M/BCA No. 279-A of 2014)

 

(a) Criminal Procedure Code (V of 1898)---

 

----S. 497(5)---Penal Code (XLV of 1860), Ss. 376, 506 & 34---Constitution of Pakistan, Art. 185(3)---Rape, criminal intimidation, common intention---Bail cancellation of---Complainant-victim was a virgin lady and according to medical evidence she was subjected to sexual intercourse---Victim had got recorded the FIR on the same day but with a delay, however, such delay was of no help to the accused as in such like cases delay in lodging the FIR was immaterial as people naturally avoided rushing to the police because of family honour---No previous enmity existed between the parties and it was against common sense that the complainant would have concocted a story which could ruin her life---Prima facie there was sufficient material available to connect the accused with the commission of the offence---Petition for leave to appeal was converted into appeal and allowed, and bail granted to accused was cancelled.

 

(b) Criminal Procedure Code (V of 1898)---

 

----Ss. 173, 497(5) & Sched. II, Column No. 8---Penal Code (XLV of 1860), S. 376---Rape---Post-arrest bail filed before the Judicial Magistrate---Magistrate allowing bail to accused for an offence under S. 376, P.P.C.---Legality---Offence under S. 376, P.P.C., was punishable with death or imprisonment of either description for a term which shall not be less than ten years or more than twenty-five years, and according to Schedule-II, Column No. 8, Cr.P.C., said offence was triable by a Court of Session---For such like cases, only the report under S. 173, Cr.P.C. had to be submitted before the Magistrate---Magistrate had nothing to do with the merits of the case and was not competent to grant bail or pass any other order which could be passed by the Trial Court---Only function of the Magistrate after the receipt of report under S. 173, Cr.P.C. was to transmit the challan to the Court of competent jurisdiction/Sessions Court---Bail granting order passed by the Judicial Magistrate in the present case was without jurisdiction---Appeal was allowed accordingly and bail allowed to accused was cancelled.

 

            Khalid Rehman Qureshi, Advocate Supreme Court and Ch. Akhtar Ali, Advocate-on-Record along with Petitioner in person.

 

            Sardar Aman Khan, Advocate Supreme Court along with Respondent No.1 in person.

 

            Zahid Yousaf, Advocate Supreme Court on behalf of A.-G., Khyber Pakhtunkhwa.

 

            Date of hearing: 3rd March, 2015.