ORDER SHEET

IN THE HIGH COURT OF SINDH,

CIRCUIT COURT, HYDERABAD.

                                      Cr.Bail.Appl.No.S- 808  of  2014

DATE     ORDER WITH SIGNATURE OF JUDGE

23.10.2014.

Mrs. Razia Ali Zaman Khan, Advocate for applicant.

Mr. Shahid Shaikh, A.P.G. for the State.

Complainant present in person.

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SALAHUDDIN PANHWAR, J:         Through instant application, applicant seeks post arrest bail in Crime No.62/2014 u/s 376(2) PPC P.S. Serri.

2.      Precisely, relevant facts are that on 14.05.2014, complainant Shahid Ahmed alongwith Mst. Shamim aged about 14 years and Mst. Khadija aged about 28/29 years were going on motorcycle towards their village. At about 2000 hours, they reached near Mullan Liter incline, Mullankatiar road where they were waylaid by Shoukat Hussain armed with repeater, Deedar Ali armed with pistol and Liaquat Ali armed with pistol. All accused on show of weapons took the complainant and victims towards mountain. Applicant / accused Liaquat Ali pointed out pistol upon complainant and directed him to keep silence whereas accused Shoukat Hussain taken Mst. Shamim and accused Deedar Ali taken Mst. Khadija towards the jungle of mountain where both accused committed Zina. After commission of offence upto 45 minutes, they all were released by accused with threats not to inform about the incident to anyone else to face serious consequences. Hence FIR was lodged accordingly; after usual investigation accused were sent up for trial.

3.      Learned counsel for applicant, inter alia, contends that allegation of rape (Zina) is not leveled against the applicant except the role of facilitator being armed with weapon which requires further probe; though allegations are against co-accused Shoukat and Deedar but medical evidence reflects that no resistance was made by victim Mst. Khadija hence story managed by complainant is improper and illogical and not believable by a prudent mind. In support of her contentions, she has placed reliance on the cases reported as Murtaza and another v. The State and another (2011 P.Cr.L.J 1619) and Rafiq Ahmed v. The State and another (2012 P.Cr.L.J 1321).

4.      Conversely, learned A.P.G. seriously opposed this bail application on the plea that Section applied in instant case provides punishment for transportation of life; there are categorical allegations against the applicant who was armed with weapon (pistol) and facilitated other accused persons who committed rape with Mst. Khadija aged about 28 years and Mst. Shamim aged about 14 years hence applicant is not entitled for bail; this Court has to examine the instant case while making tentative assessment upon prosecution case.

5.      After considering the contentions raised by learned counsel for respective counsels and meticulous examination available on record, it is manifest that complainant has categorically mentioned that applicant was armed with weapon and he alongwith co-accused intercepted complainant on the force of weapon, thereafter his accomplices accused Deedar and Shoukat taken away Mst. Khadija and a young girl of 14 years Mst. Shamim at the some distance and thereafter they committed rape respectively. The allegation against the applicant / accused is of specific nature which shows the active involvement of the applicant / accused in facilitating a brutal and immoral offence. A facilitator, under the law, is also guilty of same consequence as beneficiary of such facilitation is, therefore, the applicant / accused, at such stage, cannot claim any exception when allegation against him not only shows his active involvement but active knowledge of consequence of his facilitation. The Medical evidence available with prosecution reflects that one young girl Mst. Shamim was subjected to rape. At this juncture, it would be conducive to refer the internal examination conducted by Medical Officer, which is as under:-

“A young lady age about 14 years average built and height not sitting comfortably difficulty in walking and irritate. Scratch mark with bruising over spine and above (L) Side scaro iliac region.”

6.      Albeit as per the medical examination of Mst. Khadija no mark of violence was seen. An adult is least supposed to offer resistance against a straight gun. However, what is patent from medical evidence is that of factum of Zina upon both the girls. Out of them one is only 14 years of girl hence was / is minor (child). The ocular evidence is in conformity with medical evidence. Further, complainant has leveled allegation against three accused persons regarding rape upon two ladies hence ordinarily it cannot be assumed that one can own such type of allegations falsely by opening her family honour in the eyes of public particularly when in our society it is tragic that such girls never succeed in getting their respect. Besides, no such thing has been brought on record by the applicant / accused on record to show any such motive or consideration which could justify his false involvement by the complainant at the cost of his family honour. Thus applicant has failed to bring his cause within purview of sub-section 2 of Section 497 Cr.P.C rather from available material, the present applicant / accused appears to be linked with the offence, falling within meaning of Section 497(1) Cr.PC, hence no case for grant of bail is made out in favour of the applicant / accused. Consequently, instant bail application, having no merits for consideration, is hereby dismissed.

                                                                                            JUDGE

Tufail