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    40 2013 Ylr 2642

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    40 2013 Ylr 2642

    Uploaded by

    javed khan
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    40-2013-YLR-2642

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    40 2013 Ylr 2642

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    javed khan

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    of 3

    2013 Y L R 2642

    [Peshawar]

    Before Assadullah Khan Chamkani, J

    RAHIM SHAHID---Petitioner

    Versus

    The STATE through A.A.-G. and another---Respondents

    Criminal Miscellaneous Bail Application No.110-M of 2013, decided on 8th April, 2013.

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

    ---S. 497(2)---Penal Code (XLV of 1860), Ss. 376 & 506---Rape, criminal intimidation---Bail,
    grant of---Further inquiry---Allegation against accused was that he facilitated the co-accused in
    committing rape of the victim by standing guard with a weapon---Victim/complainant did not
    name/charge the accused for the offence in her statement under S. 164, Cr.P.C.---Nothing was
    available on record to connect accused with the commission of the offence---Case was one of
    further inquiry---Accused was granted bail in circumstances.

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

    ----Ss. 497 & 173---Bail, refusal of---Grounds--- Completion of challan---Challan put in court---
    Mere fact that challan was complete or put in court could not by itself be considered a good
    ground for refusing bail to the accused, if otherwise his case was found fit for grant of bail.

    Mst. Maria Khan v. The State and another 2013 SCMR 49 rel.

    Fazli Ghafoor for Petitioner.

    Haq Nawaz Khan for the Complainant.


    Khawaja Salahuddin for the State.

    Date of hearing: 8th April, 2013.

    JUDGMENT

    ASSADULLAH KHAN CHAMKANI, J.---Having failed to secure relief from the courts
    below, Rahim Shahid has applied for bail before this court involved in case F.I.R. No. 84 dated
    16-2-2013 under sections 376/506, P.P.C., registered at Police Station Khurshid Khan Shaheed
    (Khwazakhela).

    2. Facts of the case are that Mst. Habib Nisa submitted an application before the District
    Police Officer, Swat, alleged therein that her parents were residing at Dubai while she was living
    with her brother and grandmother in the house, situated at Jaro Dhery, Khwazakhela. Accused
    Saeed Ullah was working as labour with the mason in her house. On the eventful day, the mason
    was on leave while she was present in her house all alone, when Saeed Ullah, after Asar time,
    came to the house on the pretext that he was watering the plaster. She opened the door and on
    entering the house, accused Saeed Ullah committed rape upon her at dagger point and threatened
    her not to disclose the event to anybody else. For his facilitation, Rahim Shahid (the present
    petitioner) was also standing armed with Kalashnikov. She alleged that she is already in nikah
    with one Javid and her "rukhsati" had not yet taken place. Upon the application, an enquiry under
    section 157(1), Cr.P.C. was started and during inquiry statements of P.Ws. were recorded, which
    culminated into registration of the above referred case F.I.R.

    3. Learned counsel for the petitioner argued that accused-petitioner is innocent and has
    falsely been implicated in the case in order to destroy his future. He further argued that from the
    contents of application an offence under section 376, P.P.C. is not attracted against the petitioner
    rather an offence under sections 506/109, P.P.C. are applicable against him. He further argued
    that, though, the name of petitioner has been mentioned in the application by the complainant but
    she has not named/charged him in her statement recorded under section 164, Cr.P.C., therefore,
    his case requires further probe into his guilt and is deserved to be released on bail.

    4. On the other hand, learned State Counsel and counsel for complainant argued that the
    accused/petitioner is directly charged by the complainant. They argued that there is sufficient
    material on the record which could prima facie connect the petitioner with the commission of
    offence falling within the prohibitory clause of section 497, Cr.P.C. They further contended that
    challan in the case is complete; therefore, at this stage of the case, the petitioner is not entitled to
    the concession of bail.

    5. Arguments heard and record perused.

    6. Perusal of the record shows that, though, the present petitioner has been named in the
    application by the complainant for facilitating his co-accused Saeed Ullah in the commission of
    offence, however, she in her statement recorded under section 164, Cr.P.C. did not name/charge
    him for the offence. There is nothing on record which could prima facie connect the petitioner
    with the commission of offence. Without touching other aspects of the case, least it may
    prejudice the case of either party, on tentative assessment of the case, the case of the petitioner is
    one of further inquiry. Besides, a mistaken grant of bail would be cured by ultimate conviction if
    the guilt is proved but there would be no compensation if the bail is wrongly refused and,
    moreover, bail cannot be withheld as punishment.

    7. As far as contention of learned State counsel that challan is complete and at this stage the
    petitioner is not entitled to be released on bail is not much convincing because mere fact that the
    challan is complete or put in court by itself cannot be considered a good ground to refuse relief
    of bail to the accused, if otherwise his case is found fit for the grant of bail. In this regard
    reliance is placed on the case of Mst. Maria Khan v. The State and another (2013 SCMR 49),
    wherein it has been held that this is not a valid consideration in the circumstances of the present
    case nor is it an absolute rule that where evidence has been recorded, the accused could not be
    enlarged on bail.

    Consequently, this application is accepted and the petitioner be released on bail in case he
    furnishes bial bonds in the sum of Rs.3,00,000 (three lac) with two sureties each in the like
    amount to the satisfaction of Illaqa Judicial Magistrate, who shall ensure that the sureties are
    local, reliable and men of means.

    These are the reasons of my short order announced on 8-4-2013.

    MWA/328/P Bail granted.

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