ORDER SHEET
IN THE HIGH COURT OF SINDH,
CIRCUIT COURT, HYDERABAD.
Cr.Bail.Appl.No.S- 711 of 2016
DATE ORDER WITH SIGNATURE OF JUDGE
07.11.2016.
Mr. Muhammad Sachal Awan, Advocate for applicants alongwith applicants No.1 to 3.
Mr. Shahzado Saleem Nahiyoon, A.P.G. for the State.
Complainant present in person.
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Through instant bail application, applicants seek pre-arrest bail in Crime No.86/2016 registered at Police Station Talhar u/s 365-B, 376, 403, 34 PPC.
2. Precisely relevant facts of the FIR, lodged by complainant Muhammad Bachal on 04.08.2016 at 1900 hours, are that on 14.07.2016 at night time at about 1-30 a.m, she went backside of the house for urine purpose and suddenly she saw on the bulb light that accused Ghulam Hyder, Aziz, Noor Ahmed and Nizakat all by cast Talpur came there who put hands on her mouth and forcibly took her from her arm, abducted her towards eastern side of the village in the land and forcibly made her naked and then all the four accused persons committed forcible Zina upon her and also threatened her not to disclose such fact to anyone.
3. Learned counsel for the applicant inter alia contends that FIR is delayed by 20 days without any plausible explanation; that there is only the statement of alleged victim with regard to the alleged incident and no any other iota of evidence is gathered by the prosecution; that there are general allegations against all the accused persons and the case requires further inquiry; that all the witnesses are related inter se and set up witnesses hence their evidence cannot be relied upon.
4. Learned State Counsel vehemently opposed this application on the ground that the applicants have committed a heinous offence; that there are specific allegations against the applicants that they jointly committed rape upon the victim girl and they have been nominated in the FIR with their specific role.
5. I have carefully considered the respective contentions, raised by respective sides, and have meticulously examined the available record.
6. The contention of learned counsel for accused regarding delay in lodgment of the FIR is of no help because in such like cases the delay in lodgment of FIR is normally of no weight and substance because the people naturally avoids rushing the police station at first instance because of family honour and future consequences upon victim who normally can never get the status which she had before being such a victim. While considering the question of delay in such like case (s), it should always be kept in mind that normally one would not like to falsely involve one by letting his honour and life of his women destroyed.
7. As regard the plea that only statement of victim is against the accused, it would suffice to say that complainant does not claim to be an eye-witness nor claimed presence of any other house-inmates at such time hence such plea is of no weight at all rather appears to have been raised without reference the material, collected by prosecution. In short, in the instant case it is only the victim on whose evidence charge / allegation rests.
8. As regard the plea of general allegation, I would say that it is not a case of causing injuries but the accused persons have been alleged to have committed Zina-bil-Jabr therefore, plea of general allegation in such like situation would not be available because such allegation cannot be thrashed without diving deep which is not permissible at bail stage.
9. As regard the newspapers clipping, it would suffice to say that news paper clippings cannot be considered at bail stage but could well be proved in a way required by law for proving a document. Reference in this regard can well be made to the case of Muhammad Ashraf Khan v. State & another 1996 SCMR 1747. Even otherwise, perusal of the news-cutting shows that demonstration of accused side against the complainant party was made after date of incident hence such plea is also of no help for the applicants / accused to claim the bail.
10. The prima facie perusal of the available record shows that the applicants / accused have been alleged to have committed a serious and heinous crime i.e alleged gang-rape with a victim, a teen-age virgin. The victim have categorically named the applicants / accused for committing such serious offence. Owning such status not only resulted in an acknowledgment of ‘loss of virginity’ but deprived her of normal privileges which a virgin girl in our society enjoys. The WMO, who medically examined the victim, in the provisional medical certificate of the victim has shown that at the time of examination of victim she found her hymen absent. Apparently, no any malafide or ill will has been pointed out against the complainant or police by the applicants to falsely implicate the applicants / accused in such a case where the victim normally agrees to own dishonour and humiliation without any fault on her part. There is sufficient material available on record to connect the applicants in the commission of offence which is not only heinous but also falls within prohibitory clause of Section 497(i) Cr.PC. The bail before arrest application of the applicants merits no consideration hence the same was dismissed by short order dated 07.11.2016 and the interim pre-arrest bail already granted to the applicants was recalled.
These are the reasons of said short order.
JUDGE
Tufail