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Criminal Miscellaneous No.2083‑B of 1984, decided on 9th August, 1984.

‑‑‑S.497‑Offence of Zina (Enforcement of Hudood) Ordinance (VII of 1979), S.10/11‑‑Bail‑‑Opinion ‑of Investigating‑ Agency in regard to complicity of accused, held, could not be considered if it was not based on sound material.

Rahmat Ullah v. The State 1971 S C M R 299; Saeed Ahmad v. The State 1981 S C M R 565 and Muhammad Sadiq v. The State 1983 P Cr. L J 907 ,ref.

Muhammad Afzal v. Nazir Ahmad 1984 S C M R 429rel.

(b) Criminal Procedure Code (V of 1898)‑.‑

---S.497‑‑Offence of Zina (Enforcement of Hudood) Ordinance (VII of 1979), Ss.10/11‑‑Bail‑‑Offence of Zina‑‑Victim stating that she was kept in confinement for two nights and raped by accused‑‑Opinion of two Police Officers that accused were innocent not based on sound material‑ Victim girl filing complaint that Police compelled her and her father to withdraw from prosecution‑‑No justification existing to discard her evidence‑‑Opinion of Police Officers, held, could not be availed of by accused as ground for bail in circumstances.

‑‑‑S.497‑‑Offence of Zina (Enforcement of Hudood) Ordinance (VII of 1979), Ss.10/11‑‑Bail‑‑Offence of Zina‑‑Opinion of Police Officers that accused were innocent not based on sound material‑‑Ground pertaining to delay in lodging first information report urged on behalf of accused requiring deeper appreciation of facts of case which could not be gone into at bail stage and could be looked into after recording evidence‑‑Bail refused.

Nisar Ahmad v. The State P L D 1971 S C 174 rel.

Syed Faiz‑ul‑Hasan Naqvi for Petitioners.

Yasin Qazi for the State.

The present case was registered on 21st January, 1984, on the statement of Mst. Sughran. It was alleged by her that on 19th January, 1984 at Ishawela she was going out to ease herself, when the three accused Nazir Ahmad, Shabbir Ahmad (both petitioners) alongwith Azam put a Chadar on her face when she was near the house of Nazir Ahmad petitioner and dragged her in the Ihata of Shabbir. She was kept there for one day and two nights and raped by them turn by turn. On 21st January, 1984 at about morning, Hakim Muhammad Abdullah, Dost Muhammad and Muhammad Afzal who were searching for her, came to the house of Shabbir petitioner and recovered her from that place. Thereafter, the present case was registered at her instance.

2. The police undertook investigation. On 26‑2‑84, the S.H.O. P.S. Bhera, who investigated the case, came to the‑conclusion that the case against the three accused was false and fabricated. Subsequently the D. S. P. also investigated the case on 14‑3‑84 and confirmed the opinion of the Sub‑Inspector. However, on 30‑1‑84 i.e. only nine days after lodging, of the F.I.R and before recording of any opinion by the two Investigating Officers, Mst. Sughran lodged a private complaint against the three accused named by her in the F.I.R. It was alleged in para six of this complaint that the accused were influential Zamindars and she belonged to a poor family and as such the local police is compelling her and her father to give up the prosecution of the case. The accused were summoned by the learned Additional Sessions Judge, Sargodha, after, preliminary inquiry. They were sent to the judicial lock‑up during the pendency of the complaint. Their petition for bail was rejected. Hence this application.

3. It is stated by the learned counsel for the petitioners that Azam, a co‑accused of the two petitioners has not been arrested as he is in Army.

4. On merits, it is contended that the F.I.R. was lodged after a delay of two days and the story of the recovery of Mst. Sughran is highly improbable which makes the case of the present petitioners that of further inquiry. It is next contended that both the petitioners and the co‑accused Azam were found innocent by ail the Investigating Officer, who reported for cancellation of the case against the accused. It is, therefore, argued that the petitioners are entitled to bail. The learned counsel has placed reliance on Rehmat Ullah v. The State 1971 S C M R 299, Saeed Ahmad v. the State 1981 S C M' R 565. The learned counsel has also contended that the respectables of Illaqa trade statement on oath, at the instance of the complainant, that the accused were innocent. Thus relying on Muhammad Sadiq v. The State 1983 P Cr. L J 907, it was contended that the petitioners are entitled to bail and they were rightly found innocent by the police.

5. The learned counsel for the complainant as well as for the State have opposed this petition for bail.

6. I have considered the arguments of the learned counsel for the parties. The law laid down in the cases of Rahmat Ullah, Saeed Ahmad and Muhammad Sadiq cannot be disputed. It is correct that in such al situation the opinion of the Police Officer must put the Courts on inquiry. However, this position of law has now been further clarified in the case of Muhammad Afzal v. Nazir Ahmad 1984 S C M R 429 wherein it was held by the learned Judges of the Supreme Court that the opinion of Investigating Agency in regard to complicity of the accused cannot be considered if it is not based on sound material. I have gone through the entire police diary and I find that the opinion of the two Police Officers was not based on sound material. The two petitioners are Zamindars of the village. The complainant Mst. Sughran is Hajjam by caste. On 30‑1‑1984 when the case was still under investi gation and the two Police Officers had yet not formed any opinion about the guilt or innocence of accused, she filed the present complaint with an allegation that the police itself is compelling her and her father to withdraw from the prosecution. Even otherwise there was no justifi cation to discard the evidence of Mst. Sughran who was kept in confinement for two nights and allegedly raped by the three accused. In this view of the matter, I find that the opinion of Investigating Officer was not available to the petitioners as ground for bail.

6‑A. The other grounds pertaining to delay in lodging of the F.I.R. or improbability of prosecution story require deeper appreciation of the facts of the case which cannot be gone into at this stage. These points will be considered after recording of the evidence: Reliance is placed on Nisar Ahmad v. The State P L D 1971 S C 174.

7. In view of the above I find no merit in this petition which is accordingly dismissed. Any observation on facts of the case will have no bearing during the trial of the case which will be decided according to law.

M . Y . H . Bail ref used.

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