' ATTAULLAH KHAN J.---Having remained unsuccessful to get the concession of bail from the courts below vide orders impugned herein, Zahir Nawaz, Noor Nawaz Khan and Awal Daraz petitioners have filed this application for the same relief in case F.I.R. No, 495 dated 13-11-2008 of Police Station Naurang registered under sections 354/452, P.P.C.
2. According to the report lodged by Mst. Nazya Bibi, she is a private student of 3rd year. Her mother is a PTC Teacher while her father being unhappy from her mother is residing in Karachi. On the fateful day at about 1130 hours she was present in her house alone. In the meanwhile Zahir Nawaz and Noor Nawaz sons of Awal Draz caste Khattak, neighbourers by climbing the wall entered the house, caught hold of her and insulted. When her mother came to the house, she narrated the occurrence to her who called their father Awal Daraz and complained about the occurrence, but he too put his hands on her mother but she immediately closed the door. The occurrence was stated to have been witnessed by her brothers namely, Farhan and Afnan.
3. Learned counsel for the petitioners argued that there is an inordinate and unexplained delay of five hours in making the first report by the complainant; that there is no independent evidence in support of the prosecution case; that the three accused are brothers and father inter se and it is impossible for them to commit such an immoral offence in one company. He submitted that investigation in the case is complete and the accused/petitioners are no more required for the purpose; that the punishment provided under the law under section 354, P.P.C. Is upto two years while under section 452, P.P.C. Is upto seven years and, therefore, the case does not fall under the prohibitory limb of section 497, Cr.P.C.
4. On the other hand, learned Deputy Advocate-General opposed the grant of bail to the accused/petitioners on the grounds that they have committed a heinous offence, that they have remained absconders for more than one year and that no mala fide has been attributed for their false implication.
5. I have carefully examined record of the case and considered the arguments of the learned counsel for the parties.
6. The first point to be noted in this case is the company of the accused/petitioners.
Accused/petitioner Awal Daraz is the father of petitioners Zahir Nawaz and Noor Nawaz and question arises as to whether father and his two sons could commit such an immoral offence in one company by joining hands to disgrace a young girl and her mother. There is also no independent witness to corroborate the prosecution version. Mere assault of women is not sufficient to bring the case within the ambit of section 454, P.P.C. There are other circumstances to show that the accused had the requisite knowledge and intention. The prosecution story is also not appealable to mind because it would be a rare case when a father in the company of his two sons would try to outrage the modesty of a woman. No unimpeachable and independent evidence is available on record at the moment to support the prosecution version. The F.I.R. Is lodged with an unexplained and inordinate delay of about five hours.
7. Thus we are left with the only evidence of abscondence of the accused/petitioners. In such-like cases, the verdicts of the superior Courts are that mere abscondence is not a bar in the way of granting bail to an accused. Investigation in the case is complete and the accused are no more required for the same purpose. Moreover, the punishment under section 354, P.P.C. Is upto two years and under section 452, P.P.C. Upto seven years. Therefore, the case of the petitioners is not falling under the prohibitory limb of section 497, Cr.P.C.
8. Resultantly, this application is allowed and the accused/petitioners are admitted to bail in the sum of rupees one lac with two sureties each in the like amount to the satisfaction of Illaqa/Judicial Magistrate, who shall ensure that the sureties are local residents of Tehsil Lakki, reliable and men of means.
9. Above are the reasons for my short order of even date.