1. ' GHULAM DASTAGIR A. SHAHANI, J.---Bail application is submitted on behalf of the applicant/ accused namely Syed Naveed Ali son of Syed Zia-ul-Hassan in a Crime No,26/2008 registered at Police Station Khokhrapar under sections 365/ 376(2)/34, P.P.C.
2. 'Brief facts of the prosecution case are that Mst. Sadaf daughter of Iftikhar Ahmed recorded her F.I.R.
3. Alleging therein that on 1-3-2008, she along with her friend namely Arifa were going to medical store for taking medicines for her mother, where accused namely Shariq and his friend Naveed (present applicant) came in a car and on point of TT pistol, put them in their car and went in a house situated at Jaffar Tayyar. She further alleged that accused Shariq known to the complainant, as he was the brother-in-law of the landlord of her friend Arifa. She further states that a third companion namely Asif was already present in that house. Arifa was confined in a separate room, whereas Shariq and Naveed forcibly committed zina with the complainant one by one, while their third companion made their movies from mobile phone and after committing zina accused person extended threats to them not to disclose such fact to any one and keep contact, with them.
4. Complainant narrated aforesaid facts on next day to her mother and UC Nazim of the Area was approached, who advised them to record F.I.R. During investigation the applicant/ accused was arrested.
5. ' Bail application was submitted before the trial Court but same was rejected vide order dated 14- 7-2008 by the VIth Additional Sessions Judge Karachi East, hence present bail application.
6. ' Mr. Saathi M. Ishaque learned counsel for the applicant/accused states that applicant/accused is innocent and has been implicated falsely with mala fide and ulterior motive. There is a delay in recording of F.I.R. Without any explanation, investigation has been completed but nothing has been recovered from the applicant/accused and Medico legal report of Mst. Sadaf does not show that there is any act of resistance at the sensitive and lower part of the body and further that no mark of violence is disclosed in the report of MLO. He further states that statement recorded under section 164, Cr.P.C. Of Mst. Arifa is contradictory from the contents of the F.I.R., which creates doubt and benefit of doubt goes in favour of accused. Reliance is placed on the case of Tahir alias Tahira v.
7. The State (2001 PCr.LJ 123), Muhammad Wail Farooq v. The State (2007 M LD 1313), Abdul Hameed v.
8. The State (2004 SD 1133), Hazoor Bux v. The State (2006 PCr.LJ 1039), Mst. Hanifa Bibi and another v.
9. The State (2006 YLR 2955), Muhammad Asif alias Kala. v. The State (2007 PCr.LJ 1292) and Muhammad Ramzan v. The State (2007 PCr.LJ 587) respectively.
10. ' On the other hand Mr. Fazlur Rehman Awan learned State counsel opposed the grant of bail on the ground that applicant/accused has been named in the F.I.R. With specific allegation that he along with co-accused namely Shariq committed zina one by one with complainant (Sadaf) and their third companion Asif who was already present in a particular house made their movies from his mobile phone. The version of the complainant has been corroborated/ supported by medical report being positive, so far the delay is concerned that has been explained according to him, even though in cases of such a nature where honour of a family is involved delay is being condoned. As such applicant/accused is not entitled for concession of bail and bail application may be dismissed.
11. ' Heard Mr. Saathi M. Ishaq learned counsel for the applicant, as well as Mr. Fazlur Rehman learned State Counsel and with their assistance perused the material available on record, so also law relied upon. As per record F.I.R. Was recorded by Mst. Sadaf (victim) with Khokhrapar Police Station, alleging that on the day of incident when she along with her friend Arifa was going to Medical store in order to purchase a medicine for her mother, accused Shariq and his friend Naved (present applicant) came in a car and by showing T.T. Pistol they put them in their car and took in side the house situated at Jaffar Tayyar, where their third companion namely Asif was already present. Mst.
12. Arifa was confined in a room, whereas present applicant/accused and Shariq one by one forcibly committed zina with Mst. Sadaf (complainant) whereas above named Asif made their movies from his mobile phone and after committing zina they were allowed to go with extending threats not to disclose such fact to any one and further that they keep contact with them and be present as and when they call them. Such fact was disclosed by the complainant to her mother and UC Nazim of the Area was approached by her family, who advised them to record the report with ..Police station, such F.I.R. Was recorded. She was Medically examined and medical report is positive, though she examined after recording of F.I.R. In view of above facts, when applicant/accused has been nominated in the F.I.R. With specific role of committing zina with Mst. Sadaf (complainant) along with co-accused namely Shariq one by one, their third companion recorded their movies from mobile phone and they were forcibly put in a car, on the point of T.T. Pistol, took them in a house situated at Jaffar Tayyar, committed offence of such nature together and extended threats not to disclose such fact to any one and that they remain in contact with them and be present on call.
13. Not only this, but specific role has been assigned, medical report being positive of unmarried girl cannot be ignored, where honour of the girl is involved. So far arguments of the applicant/accused in respect of statement recorded under section 164, Cr.P.C., of Mst. Arifa is concerned, preference is to be given to the statement of victim namely Sadaf, supported by the medical evidence to be positive. Even otherwise, Mst. Arifa has supported to the version of Sadaf and accused cannot be benefited on minor technicalities. Even otherwise there is no reason that why at this stage version of the victim may not be believed, though her evidence supported by medical evidence is sufficient for conviction. Reliance is placed in a case of Nasar Iqbal v. State (2000 PCr.LJ 1564). No enmity/ill will is alleged against the complainant and police, in respect of false involvement of the applicant/accused in the present matter, whereas, only on the ground of delay, bail cannot be granted, as it is yet to be determined on trial, so far the Law relied by the learned counsel for the applicant is concerned, not a similar and identical to the case in hand, as such same will not help to the applicant/accused.
14. ' In view of aforesaid facts and circumstances, applicant/accused was not found entitled for grant of concession of bail, as such application was dismissed by a short order dated 26-9-2008.
15. ' These are the reason of short order dated 26-9-2008.