1. ' SYED ZAWWAR HUSSAIN JAFFERY, J.--- The above mentioned bail applications are being disposed of by common order as the applicants/accused are booked in Crime No,52 of 2004. Applicants Huzoor Bux and Muhammad Abbas are facing trial in S.C. No,67 of 2004. The applicants/accused seek bail in above mentioned crime.
2. ' The brief facts as enumerated in the F.I.R. Are that complainant Hadi Bux resides in Sui Gas Colony Taluka Nawabshah along with his family members and working as a gas mechanic. They have facility of coaster for coming and going to town and pick and drop of their children. On 27-4-2004 daughter of complainant namely Mst. Rehana aged about 15 years, who is studying in IXth Class in Government Middle Girls High School Gharibabad and another daughter of Muhammad Ilyas Bhatti namely Mst. Shabana whose age is 13 years. Both the girls went to school on 24-4-2004 and did not come back. The complainant party searched for them and ultimately came to know that Huzoor Bux son of Nabi Bux, Huzoor Bux son of Mehar Ali (applicant) and Aziz son of not known who are drivers on contract basis of the Gas Company in collusion with each other have kidnapped their daughters with intention to commit Zina. The F.I.R. Was lodged on 29-4-2004. After due investigation both the girls were recovered and their 164, Cr.P.C. Statements were recorded by the Judicial Magistrate-I, Nawabshah on 30-4-2004. Both the victim girls were recovered by the police.
3. They were referred for medical examination and certificate as well as determination of their ages.
4. As per opinion of the Special Medical Board constituted by Principal P.M.C.H. Nawabshah the age of Mst. Rehana daughter of Hadi Bux is aged about 17 years whereas age of Mst. Shabana daughter of Muhammad Ilyas Bhatti is about 16 years. Hence this application.
5. ' Mr. Chandio, learned counsel for the applicant/accused has contended that there is delay of two days in lodging of the F.I.R. And no plausible explanation has been given for such delay. The name of applicant Muhammad Nawaz does not appear in the F.I.R. And no allegation has been alleged in 161 and 164, Cr.P.C. Statements about the commission of Zina or any other act. It is further urged on behalf of the applicants/accused that as per F.I.R. Accused Huzoor Bux son of Mehar Ali and Huzoor Bux alias Nabi Bux forced the victim girl to travel in the bus. The above named accused also travelled in the same bus but according to 164, Cr.P.C.. Statement both girls were taken by one Aziz to a house where both the girls were confined for half hour and thereafter (Chhota) Huzoor Bux committed rape and applicant Abbas used to come in the said premises..Mr. Chandio further submits that Mst. Shabana was marred with Aziz at Karachi and during the travelling time in the bus and while in confinement at Karachi in a room they did not raise any objection or resistance for commission of the offence. As per statement under sections 161 and 164, Cr.P.C.
6. Application/accused Huzoor Bux son of Mehar Ali has not committed the offence of Zina whereas offence is alleged against co-accused Huzoor Bux son of Nabi Bux.
7. ' Mr. Chandio, in support of his arguments has relied upon the cases of Muhammad Azhar Nadeem v. The State 2002 PCr.LJ 12 and Qari Nazeer and 2 others v. The State 2003 PCr.LJ 884. The applicants are entitled for the concession of bail.
8. ' Conversely, Mr. Kalhoro learned counsel for the applicant has opposed the applications for grant of bail on the ground that co-accused Huzoor Bux son of Nabi Bux and applicant/accused Huzoor Bux son of Mehar Ali Machhi have kidnapped the victim girls in a bus and thereafter both the girls were handed over to one Aziz and after half hour of their confinement in the room Huzoor Bux (Chhotta) committed the offence of Zina forcibly. Whereas Mst. Shabana has deposed that one Aziz used to commit Zina and the accused have planned to sell them to the strangers.
9. ' Mr. Kalhoro has relied upon the cases of Amanullah v. The State 1993 SCM R 1806.
10. ' I have heard the learned counsel for the respective parties, examined the material placed on record and the case cited at the bar.
11. ' Admittedly, both the girls were neither recovered from the custody of applicants/accused nor they have alleged commission of Zina in their 161 and 164, Cr.P.C. Statements. From the perusal of 161/164, Cr.P.C. Statements of victim girl Mst. Rehana daughter Hadi Bux it is alleged that on the day of incident Huzoor Bux put them in a coach forcibly and took them to Karachi where both the girls were given to one Aziz who was already standing. He took them to his house and both the girls were confined in a room. After half hour younger Huzoor Bux committed Zina forcibly.
12. Applicant/accused Abbas and co-accused Sadiq used to visit the said house. It is further disclosed in the statement that both the girls were confined for three days and raid was effected by the, police and then both the girls were recovered and were brought to Nawabshah and then both the girls were produced before the Judicial Magistrate-I, Nawabshah and their 164, Cr.P.C. Statements were recorded.
13. ' As per 164, Cr.P.C. Statement of Mst. Shabana it reflects that both. Huzoor Bux put them in a coach and they were taken to Karachi and one person namely Aziz was standing who took them to a rented house and both were confined in one room. After half hour Aziz, Sadiq and Abbas came in the room and they disclosed that by tomorrow they will be taken to Hazara for the purpose of selling them. Aziz committed Zina with her and after three days raid was effected by the police and both the girls were recovered and taken back to Nawabshah. Both the girls were after recording their 164, Cr.P.C. Statements were handed over to their parents.
14. ' From the perusal of the medical certificates of both the victim girls it has been opined by the Lady Medical Officer that victim Mst. Shabana is not virgin and admits two fingers and hymen was not found intact whereas it is further opined in the medical certificate in respect of Mst. Rehana that there was sign of incomplete abortion and admits two fingers and hymen was not found intact.
15. The final opinion has been reserved for Chemical Analyser's report for external and internal vagina swa bs. As per medical report in respect of victims there is no mark of violence on their persons to assume that both the girls were subjected to sexual intercourse by the accused forcibly. It is yet to be determined at the trial stage whether the applicants/accused had committed the offence C of Zina as alleged by the prosecution. As per 164, Cr.P.C. Statements there is no allegation of commission of Zina by applicant/accused Muhammad Abbas although applicant/accused Huzoor Bux son of Mehar Ali has been involved by both the victims that he forced them to travel in the bus and then both the girls were handed over to one Aziz but it is alleged against co-accused Huzoor Bux son of Nabi Bux Banglani for commission of offence of Zina. The medical evidence about the commission of Zina is in conflict with the evidence of both the victim girls as both were examined by the Medico-legal Section of P.M.C.H. D Nawabshah and their hymen was not found intact and both the girls admitted two fingers easily. It appears that both the girls were used to carry on illicit relations before the registration of F.I.R. And there was sign of incomplete abortion by victim Mst.
16. Rehana.
17. ' In view of circumstances, I am of the view that a case of further enquiry is made out in favor of the applicants/accused as contemplated under section 497(2), Cr.P.C. Accordingly bail application is allowed and the applicants/accused are admitted to bail on their furnishing solvent surety in the sum of Rs,1,00,000 (Rupees one lac) each and P.R. Bond in the like amount to the satisfaction of the trial Court.