ORDER TUFAIL H. EBRAHIM, J.-Applicants/accused are involved in case crime No. 181 of 2010 registered at Police Station Khipro, District Sanghar for the offence punishable under sections 376(2)! 342/354-A/337-J/506(2), P.P.C. It may be noted that initially protective bail was obtained by the applicants/accused on 6-10-2010 from the High Court Hyderabad Circuit and thereafter the Hon'ble Chief Justice of the Sindh High Court on the application under Rule 7 of the High Court Benches Rule 1987, vide Order dated 15-10-2010 was pleased to fix this matter in court at Principal seat at Karachi. The applicants/accused were granted ad-interim bail before arrest by this Court vide order dated 15-10-2010.
Brief facts of the prosecution case according to F.I.R. Lodged on 4-10-2010 by complainant Dr. Muhammad Amin are that his niece Mst. Zainab daughter of Lal Muhammad, who is studying in with class in Government Girls High School Khipro, where her friend Farasat d/o Khalid, a student of the same school, would occasionally go to her house. His niece, Mst. Zainab, went to school on 28- 9-2010 early in the morning but did not return. Search was conducted by the family but to no avail.
After two days at about 2-30 a.m. There was a knock at the door of their house and the complainant along with his cousins came out to find his niece Mst. Zainab lying un-conscious at the doorstep. After providing medical treatment, she regained her senses and narrated that on her return from school, her friend Mst. Farasat took her to her house, where her two sisters Nayab and Tahreem served her sweet at about 14-30 hours. The brother of her friend, namely Danish, and his three friends, namely Jehanzaib, Waseem and Suhail were there. After a little while, Farasat, Nayab and Tahreem left the room and she felt partially un-conscious. Danish son of Khalid Qaimkhani, Jehanzaib son of Alamdin and Waseem son of Liaquat armed with pistols and Suhail Qaimkhani having a dagger in his hand came inside the room. Danish forcibly removed her clothes and put her down in the room and committed zina with her. Then the other accused Jehanzaib, Waseem and Suhail took turns to commit zina with her and she became un-conscious. For two days she remained confined in that room where the zina was committed on her. The zina was filmed on the mobile and she remained unconscious. At the same time, they also threatened to kill if she disclosed the episode. Thereafter, all the four accused put her in a car and dropped her outside her house.
On narration of 'such fact by his niece; the complainant consulted with his relatives who advised him to lodge a complaint.
Learned counsel for the applicants/ accused has contended that the applicants/ accused have been falsely implicated in this case. Per learned counsel the statement of victim girl is contrary to the statement of complainant and there is delay of six days in lodging of F.I.R. For which no plausible explanation has been given, therefore consultation and deliberation cannot be ruled out for mala fide implication of the applicants/accused in this case. Learned counsel further argued that the victim girl was expelled from the school since her absence from November., 2009 as per the investigation made by District Officer Secondary Education, Sanghar. Per learned counsel there are no independent eyewitnesses to the alleged offence. On 28-9-2010 when the alleged offence took place (a) applicant/accused No.2 was not enrolled in the said school and as such had not gone to the said school; (b) applicant/accused No.1, a medical student, that day was appearing in ward test at Liaquat University of Medical and Health. Sciences, Jamshoro, as per the certificate issued by the Incharge/Registrar Assistant Professor Dr. Abdul Haq Khan and (c) applicant/accused No.3 was at Khatri Para, Taluka and District Tando Allahyar, living with her husband as per the affidavit of her husband Sajid Majeed.
Learned counsel has argued that the victim in her 164, Cr.P.C. Statement has narrated another version of the incident, which is contrary to the contents of F.I.R., which proves mala fide on the part of complainant party and creates doubt in the case of the prosecution. The learned counsel has vehemently argued that applicants/accused are respectable women, having no previous criminal record and they have been falsely implicated in the F.I.R. For mala fide reasons in connivance and under the influence of the complainants' party to humiliate, harass and disgrace them. Per learned counsel there is no incriminating material to connect them with the alleged offence and the case of the applicants/accused is totally different from the case of males accused. The applicants/accused have joined the investigation and the applicants/accused are no longer required for any further investigation. In support of his contention learned counsel relied upon the following case-law.
1. In the case of Tarriq Bashir and 5 other v. The State PLD 1995 SC 34, it is held as under:-- "Question of benefit of reasonable doubt is necessary to be determined not only while deciding the question of guilt of an accused but also while considering the question of bail because there is a were difference between the jail life and a free life. So, benefit of reasonable doubt about occurrence itself identity of the accused, part allegedly played by him in the occurrence, his presence on the spot and on the question 'of his vicarious liability, would go to him even at bail stage. It is by now judiciously recognized that there is a tendency in our country to involve innocent persons with the guilty. Once an innocent person is falsely involved in a serious case then he has to remain in jail for considerable time. Normally it takes two years to conclude the trial. When a person is detained in the jail, all his dependents also suffers hardships. The ultimate conviction and incarceration of a guilty person can repair the wrong caused by a mistaken relief of interim bail granted to him, but no satisfactory reparation can be offered to an innocent man for his unjustified incarceration at any stage of the case, albeit his acquittal in the long run. So whenever reasonable doubt arises with regard to the participation of an accused person in the crime, he should not be deprived of the benefit of bail. The bail can neither be withhold nor cancelled as punishment."
2. In the case of Rais Wazir Ahmad v. The State (2004 SCMR 1167), it is held as under:-- "It is true that normally a person, against whom a case has been registered, at the first instance, may approach the original court jurisdiction i.e. Sessions Judge in the matter of bail before arrest because propriety so demands it is not an absolute rule as depending upon the compelling circumstances of each case, a person can approach directly to the High Court invoking its concurrent jurisdiction."
3. In the case of Syed Saeed Muhammad Shah and another v. The State (1993 SCMR 550), it is held as under:-- "In the absence of satisfactory nature of explanation normally rule is that statements recorded by police alter delay and without explanation are to be rule out of consideration."
4. In the case of Muhammad Ali v. Maqsood Mai (1989 PCr.LJ 2153), it is held as under:-- "I find that there is no evidence of Mst. Maqsood Mai instigated his brother and others to kill the deceased: that she was not present on the spot and had not physically participated in the occurrence that she being a woman, her case falls within proviso to section 497, Cr.P.C. And that the trial Court has exercised its discretion and given sound and cogent reasons in support of its order granting pre-arrest bail to the respondent. It is well settled that once bail after arrest/pre- arrest is granted by the Court of competent jurisdiction then strong grounds would be required for interference with the same, which I do not see in the case in hand."
5. In the case of Miss Shahla Raza v. The State (1991 MLD 1814 (Karachi)), it is held as under:-- "It is contended on behalf of the applicant that she being a woman is entitled to the grant of bail under first proviso to subsection (1) of section 497, Cr.P.C. Which lays down:-- `Provided that the Court may direct that any person under the age of sixteen years or any woman or any sick or infirm person accused of such an offence be released on bail.'
This proviso is an exception to the general rule of not releasing a person on bail who, if there appear reasonable grounds, for believing has been guilty of an offence falling within the prohibitory clause of section 497, Cr.P.C. The grant of bail although discretionary the Court have always leaned towards such exercise even in murder case. The grant of bail to a woman should be in rule and the discretion must be exercised in her favour in the absence of some compelling circumstances disentitling her to the grant of bail. If any authority is needed the cases of Mst. Allah Jiwai v. The State, reported in 1984 PCr.LJ 120 Mst.Elvinia alias Guddi v. The State, reported in 1984 PCr.LJ 2911, Nasir Mehmood Khan v. The State, reported in 1985 PCr.LJ 159 and Mst. Baboo Jana v. The State reported in 1990 PCr.LJ, 326, may be cited with advantage. In Nasir Mehmood Khan's case it was held that mere heinousness of offence is not sufficient to take away the discretion of the Court to grant bail which is never refused as a punishment and there is no legal or moral compulsion to keep a person in jail. The applicant who is a young educated lady is thus entitled to the grant of bail on this score alone."
6. In the case of Mst. Gugoo v. The State (PLD 1985 Pesh. 114) it is held as under:-- "A pre-arrest bail is granted by the High Court or the Court of Session under the powers conferred by section 498, Cr.P.C.
In the words that such Court may direct that any person be admitted to bail, while exercising its powers under section 498, Cr.P.C. Court has also to keep in view the provisions of section 497, Cr.P.C. Bail before arrest is granted in a case which the Court feels that perhaps accused has been likely involved in the case and he is likely to suffer irreparable injury to his dignity, honour or reputation by his arrest. Since, the legislature favours the grant of bail to persons under the age of 16 years or women of sick or infirm persons accused of offences punishable with death or imprisonment for life or imprisonment for ten years under the first proviso to subsection (1) of section 497, Cr.P.C. Hence accused of the category and particularly Pardanasheen women should not be refused a pre-arrest bail particularly in cases charged for offences not covered by the prohibitory clause of subsection (1) of section 497, Cr.P.C., more so, when there are also allegations of danger to their dignity and honour in case of their arrest."
6A. In the case of Mst. Asfar Bibi v. The State (2005 PCr.LJ164), it is held as under:-- "Which version is correct is yet to be seen after recording of evidence at the trial stage. Third version is also to be put forward by the petitioner herself where she had stated that she was subject to rape and in order to save herself she had used knife and injured Gulzaman, which resulted in chopping of his pennies. In view of the fact that prosecution had narrated the story in the F.I.R. Which had totally been by the supplementary statement of the victim as well as cross- version submitted by the petitioner. I am of the view that case against the petitioner is not free from the doubt and falls under the ambit of further inquiry. Although in cross-version, she had admitted cutting of pennis of Gulzman that too in peculiar circumstances narrated by her in her defence. The petitioner being lady, her case is covered under the first proviso to section 497, Cr.P.C.
Entitling her to be released on bail. The wisdom behind said proviso, to protect the women from the rigorous of imprisonment before trial and also to save women-folk from the atmosphere of jail which is of course not congenial for women, children minors and old age persons."
8. In the case of Ghulam Hussain alias Hussain Bakksh and 4 others v. The State and another (PLD 1994 SC it is held as under: "Needless to emphasise, that when there are two conflicting versions for consideration before Court, the one agitated by the prosecution and the other by the defence and both are probable, the one favouring the defence is to be preferred, more so when it gets corroboration from the circumstantial evidence available in the case."
9. In the case of Muhammad Younus v. The State (1992 SCMR 1592), it is held as under:-- "There are two versions of the occurrence one alleged by the prosecution and other advanced by the appellant raising the plea of self defence. It is by now well established in a situation like the one in hand, both the judgments have to be kept in juxtaposition and the one favourable to the defence is to be preferred to, if it gets some support from the admitted facts and circumstances of the case and appeals to common sense."
10. In the case of Muhammad Rahim and another v. Baita Gul and another (PLD 1994 SC 86), it is held as under:-- "There are two versions of the incident. Except the two male deceased, all persons are involved are closed related to each other. Tariq Nawaz who is young by of 16 or 17 years, first made a complaint against his brother-in-law and then in his statement under section 164, Cr.P.C. Resiled from it and accused the petitioners. In the absence of any direct evidence except the statement of Tariq Nawaz on record., so far there does seem to be any other effective material to reasonably connect the petitioners with the offence. The petitioners have denied to have made any extra-judicial confession, therefore in the absence of any other direct evidence against them, or on the of such alleged confession bail cannot be cancelled. In view of these facts, it calls for further inquiry. The High Court has the discretion to grant, refuse or cancel the bail, interfere, it is shown that the discretion has been exercised arbitrarily in disregard some of the salient facts or in violation of illegal principles applicable to the case. No such illegality could be pointed out in the order of the learned Sessions Judge."
11. In the case of Lal Muhammad Kaihoro and others v. The State (2008 SCMR 843), it is held as under:-- "Surprisingly, learned Judge in Chamber of High Court had not referred to singly word or incriminating evidence against them. In this behalf reference may be made to the case of Imtiaz Ahmed v. State PLD 1987 SC 545 wherein it has been held that bail is not to be refused to an accused for the purpose of punishment. Relevant para therefrom reads as under:-- "it is, therefore, quite clear that refusal of bail to a person in a case where he is entitled to its grant as of right, can only be justified on some statutory provision or on grounds strictly relatable to the holding of a just and fair trial. Such refusal cannot be justified on any high principles of ethics or morality. It may be stated here that both under the Anglo-Saxon concept of Criminal jurisprudence as well as Islamic dispensation of criminal justice, the initial presumption of innocence of an accused charged, with a criminal offence is not dislodged until he is proved guilty. Article 9 of the Constitution of Islamic Republic of Pakistan also provides that a person will not be deprived of his life and liberty except in accordance with law. Therefore, bail cannot be refused in a case by way of punishment."
12. In the case of Haji Wali Muhammad v. The State (1996 SCMR 233), it is held as under:-- "Leave to appeal was granted by this Court on the 2nd of October 1967 on the ground that the evidence against the petitioner was still to be evaluated and that as a general rule on a charge of the kind made in this case not involving a sentence of death' or transportation for life, bail should ordinarily be allowed disregarding the grounds of seriousness or anti-social nature of the offence unless there be strong grounds, in the shape of evidence for the belief that he is guilty. Ad interim bail was allowed to the petitioner leaving it -open to the prosecution to move for its reconsideration presenting before the Court all the material in their possession including - the confessional statements which had allegedly been made by some of the co-accused persons. The State did not apply for cancellation of interim bail and no circumstance has been pointed out by the learned counsel for the respondent to justify the cancellation of the petitioner's bail at this stage. We will accept this appeal and direct that the petitioner shall continue to remain on bail already furnished by him under the orders of this Court during the pendency of the case. It will, however, be open to the prosecution to move the High Court for cancellation of petitioner's bail on some fresh ground, if that step be considered be justified."
Learned counsel for the complainant has argued that applicants/ accused have been nominated in the F.I.R. With the specific role and the victim in her 164, Cr.P.C. Statement has also specifically nominated the applicants/accused with the specific roles. Learned counsel further contended that under section 376 of the Protection of Women Act, 2006 when rape is committed by two or more persons in furtherance of common intentions to all, each of such persons shall be punished with death or imprisonment for life and in the present case common intention is very much evident front the contents of the F.I.R. And also from the 164, Cr.P.C. Statement of the victim.. The applicants/ accused had facilitated the men accused by forming unlawful entity and have actively participated in commission of the crime. Per learned counsel the version tendered in the F.I.R. By the complainant is fully corroborated by . The statement under sections 161, Cr.P.C. And 164 Cr.P.C.
Of victim Mst. Zainab. The learned counsel further submitted that the medical evidence of victim fully supports the prosecution's version. Per learned counsel the applicants/ accused have not alleged any enmity with the victim or complainant party nor the false implication in the present gang rape case. Per learned counsel the video CD and computer has been recovered by the police from the place of the residence of the applicants/accused, which proves that the offence had occurred. In support of his contention learned counsel has relied upon the following case law:--
(1) In the case of Imtiaz Ahmed and another v. The State (PLD 1997 SC 545), it is held as under:-- "The people commit offences detrimental to the society and the country for money. Some of the holders of pubic office community or facilitate commission of offences for monetary consideration.
In the above scenario the Courts approach should be reformation- oriented with the desire to suppress the above misachieves. To achieve the above objective, it is imperative the Courts should apply strictly the laws which are designed and intended to eradicate the above national evils but at the same time, they are duty bound to ensure that the above approach should not result in miscarriage of justice. It should not be overlooked that Article 9 of our Constitution, which relates to the fundamental right. Guarantees life and liberty of every person. Life, inter alia, includes the right to have access to a fair and independent judicial forum for redress. A balance is to be struck between the national and individual interest/right.
(2) In the case of The State v. Abdul Malik alias Malkoo (PLD 2000 Lah. 449), it is held as under:-- "A heinous offence is an offence which is wicked, atrocious, cruel and Offensive. The Offence of raping a girl aged 6/7 years is an act which by all standards is cruel, wicked and offensive and therefore, would fall within the ambit of the expression "heinous offence" used in the preamble of the Anti-Terrorism Act, 1997 calling for an extraordinary remedy in law. The offence complained of in the instant case is not only heinous but would also constitute a "terrorist act". As defined in section 6(b) of the Act a person is said to commit terrorist act if-- Commits a scheduled offence, the effect of which will be, or be likely to be, to strike terror, or create a sense of fear and insecurity; in the people, or any section of the people or to adversely affect harmony among difference section of the people"3. In the case of Shahzad alias Shaddu and others v. The State (2002 SCMR 1009) it is held as under:-- "We would like to mention here at this juncture that corroboration is not a rule of law but that of prudence. There is no denying the fact that acid test of the veracity of the prosecutor's statement is the inherent merit of her statement because corroborative evidence along could not be made a base to award conviction. It is well settled by now that " that the extent and the nature of corroboration required may, no doubt. Vary from witness to witness and from case to case, but as a rule it is not necessary that there should corroboration in every particular, all that is necessary is that corroboration must be such as to effect the accused by connecting or tending to connect him with the crime. The corroborative evidence should tend to show that the witness or witnesses' evidence that the accused took part in the crime is true. To say that certain witnesses required corroboration and they to lay down that the corroborative evidence must show that the accused did not precise act attributed to him by the witnesses is tantamount to doing away with the evidence of those witnesses. And the same would be the result if the corroborative evidence required in such is incompatible with the innocence of the accused. The true rule governing such situation is that the corroborative evidence should at least tend to show that the evidence of the witness when they name the accused as taking part in the crime is true. Corroboration of the interested testimony should be such as would remove the doubt that the accused have been falsely implicated. "
In the case of Mst. Bibi Rani v. Nejabat Ali and another (1994 SCMR 2277) it is held as under:-- "There is nothing in the impugned order to show that mala fide was pleaded as a ground for the grant of bail. The mere fact that the petitioner was found innocent during one of the investigation would not constitute any valid ground for extending the extraordinary concession of pre-arrest bail to the respondent."
4. In the case of Mst.Saifa Bano v. Tanveer Ahmed and 2 others (2005 MLD 440), it is held as under:- - "Even if for the sake of argument it is presumed that the petitioner was a consenting party, it does not lower the heinous of the offence committed by the respondents as Zina is punishable in any form, but on the other hand the petitioner was admittedly a minor and consent of the minor cannot be iaken into account. Mere delay in such-like case is also no ground for grant of bail as the complainant party has to think hundred times before registration of the case which involved the honour of the whole family."
6. In the case of Muhammad Yakub v. Iltafur Rahman and another, PLD 1974 SC 83, it was held as under:-- "We have no intention of recording any finding as to the truth or otherwise of the plea of alibi raised on behalf of the respondent Iltafur Rehman's, as that is the function of the trial Court. All that we are called upon to examine at this stage is whether this was a case where there were, or not, reasonable grounds for believing that the respondent was guilty of an offence punishable with death or trans- portation for life.................. ,..It is well settled that such a sifting is not to be undertaken for the purpose of grant of bail as that is likely to preempt the duties and functions of the trial Court, and to prejudice the prosecution or the defence."
In the case of Safirullah v. State under:-- "The alleged theory of alibi has still to stand the test of scrutiny on the basis of evidence yet to be recorded by the trial Court."
7. In the case of Mst. Nasreen v. Fayyaz Khan and another (PLD 1991 SC 412), it is held as under:-- "It has been observed time and again that there would hardly be a case which would not require "further inquiry, therefore, this element by itself is no ground for granting bail under subsection (2) of section 497, Cr.P.C. Such orders are on the very face illegal which do not fulfil the second condition regarding tentative opinion about the prima facie, guilt or otherwise of the accused."
8. In the case of Mst. Yasmin Butt v. Majid Baig alias Bobby Pehlwan and another (2008 SCMR 1602), it is held as under:-- "We have heard the learned counsel for the parties at length and perused the available record. The reasons for delay in lodging the F.I.R. Have been mentioned in the F.I.R. Itself. In such-like cases the victims and their parents think several times before reporting the matter to the police, as unfortunately it becomes difficult to mary .The victim respectably after the tragedy. The learned trial Court has mentioned that no marks of violence were observed on the person of the victim, however, the learned Judge completely overlooked the fact that the accused was armed with a .30 bore pistol and had frightened the poor victim to the extent that resistance was, perhaps, not possible. During investigation statements of Mst. Shaista-victim were recorded under sections 161 and 164, Cr.P.C., wherein she gave the details of the occurrence and fully implicated the respondent-accused. As far as the report of medical officer dated 14-12-2006 is concerned, it was mentioned therein at Sr. No.6 that the hymen was intact having normal size and size of opening was tip of finger while according to the opinion of the Medical Board which examined the victim on 3rd January, 2007, the vagina admitted two fingers. The factum of the admission of two fingers, prima facie, supports the story of the victim and the non-detection of semen would not benefit the accused at this stage as only penetration was enough to constitute the offence. The above noted variance in the medical report, prima facie, shows that the medical officer who initially examined the victim was approached by the accused. The application of the respondent seeking pre- arrest bail in the case is available on the record. Perusal of the same reveals that the mala fide on the part of complainant or the victim was not even alleged nor it was mentioned in it as to why he was involved in this case."10. In the case of Mazhar Iqbal v. The State and another (2010 PCr.LJ 1702), it is held as under:-- "The solitary statement of the victim/prosecutrix can be relied upon for the purpose of prosecution of an accused charged with, identical allegation. The required degree of corroboration to the statement of the complainant-victim is available in this case in the form of the MLR of the victim which has been discussed earlier. The learned counsel for the petitioner failed to answer to the query of this court as to why a virgin educated girl shall put her honour and dignity as well as that of her family at stake for implicating someone in a criminal case. The sanctity of the report of Chemical Examiner shall be assessed during the course of the trial. I find that the opinion of the Investigating Officer is sketchy, in nature. The offence with which the petitioner is charged falls within the mischief of prohibitory clause of section 497, Cr.P.C."
The learned A.P.-G. Has adopted the arguments of the counsel of the complainant. He has argued that it is a heinous crime which is against a young girl and opposes the grant of bail to the applicants/accused.
I have heard the learned counsel of the applicants/accused, learned counsel of the complainant and the learned A.P.-G. And pursued the record and the case laws relied by them.
During the pendency of this proceeding the learned counsel for the complainant had filed a statement that after granting of the interim pre-arrest bail on 15-10-2010 the applicants/accused have not attended the trial court from 21-10-2010 to 24-11-2010 and they have misused the concession of the bail and therefore the interim pre-arrest bail order dated 15-10-2010 should be recalled. The learned A.P.-G. Has supported the contention of the counsel of the complainant.
The learned counsel of the applicants/accused has argued that this statement is misconceived and has been filed with mala fide intentions and the interim bail cannot be recalled on technical grounds. Per learned counsel no notice had been issued to the applicants/accused by the trial Court or I.O. As to the date of submission of the interim challan on 21-10-2010 at Khipro and even the men accused were not brought from the jail. Per learned counsel no notice was issued for the transfer of the case to the Court of Addl. Session Judge, Sanghar for 28-10-2010 and for this reason the learned Addl. Session Judge, Sanghar for the first time directed that notice may be issued to the applicants/ accused for their appearance and for supply of case papers. Per learned counsel the said notices were not served upon the applicants/accused and which is evident from the diary sheet of 24-11-2010 and notices were once again issued, without passing any adverse orders against the applicants/accused. Per, learned counsel once the notice was received for 8-12-2010 and on receipt of such notice the applicants/ accused appeared before the trial court.
I have heard the arguments of the learned counsel of both parties. From the record prima facie it appears 'that notices had not been served upon the applicants/ accused and the court prior to 24- 11-2010 were complying pre-trial requirements as to determination of place of trial, cognizance of offence by Court; issue of process to procure the attendance of the accused, supplying copies, fixing dates for hearing, etc. It is also to be noted that such complaint has not been filed by the State counsel about the misusing and abusing of the concession of bail by the applicants/ accused. In the said statement there is no allegation as to (a) fresh fact determined during investigation to point out the guilt of the applicants/accused, (b) indulged in similar criminal activity (c) interfered in investigation (d) tampered with evidence (e) making themselves unavailable for investigation, etc. Since the applicants are young ladies and due to transfer of case and for the aforesaid reasons, I am at this stage not inclined to take serious action against the applicants/accused as to cancellation of bail, but put them on caution that if the applicants/accused in future misuse or abuse the concession of bail the same would be cancelled.
It is evident from the record that there was delay of six days in lodging of F.I.R. For which no plausible explanation has been given. Therefore, consultation and deliberation cannot be ruled out for mala tide implication of the present applicants/ accused in this case. The statement of the victim recorded on 13-10-2010 under section 164, Cr.P.C. Is not in consonance with the statement of complainant. In the statement recorded on 11-10-2010 under section 161, Cr.P.C., by the victim, another girl Laraib was mentioned who had asked her to go to her house and in the statement under section 161, Cr.P.C., it was stated that she was forcibly taken away her to her home and nothing was stated as to what happened after she had the sweetmeat.
From the record it prima facie appears that the victim girl was expelled from the school due to her absence from November, 2009. Even accused/applicant Farasat's enrollment in the school was cancelled. There are no independent eyewitnesses as to the attendance of Farasat or the victim in school on the day when she was allegedly forcibly taken by accused/ applicant, Farasat. No specific role has been assigned to applicant No.1 who on the said date of occurrence of the offence had appeared in ward test at Liaquat University of Medical and Health Sciences, Jamshoro. As per the affidavit of the husband of applicant/accused No.3, the latter was present at Khatri Para, Taluka and District Tando Allahyar, and not at the place of the crime. The truth or otherwise of the pleas of alibi taken by the applicants/accused will be considered and decided by the trial court after recording of evidence and considering in detail all the available material and facts; but cannot be altogether ignored while deciding this bail application.
Prima facie there are different versions, although minute as to the involvement of the applicants/accused in the statement of the victim recorded under sections 161 and 164 Cr.P.C. And what appears in the F.I.R. Mala fide intention and deliberation on the part of complainant party cannot be ruled out due to the different versions as aforesaid, when read with the delay of six days in lodging F.I.R. And as such creates reasonable doubt in the case of the prosecution against the applicant/accused. The applicants/accused are young women belonging to respectable family and have no previous criminal record and one of them is studying in a medical college and the possibility of them being falsely and malafidely implicated in the F.I.R. To harass, humiliate and disgrace the applicants/accused can not be ruled out since they are the sisters of one of the men accused. Prima facie no incriminating material is available to show that applicant/ accused Farasat with pre-planned objective, forcefully or manipulatively, brought the victim from the school to the house where the alleged crime took place and/or to connect all of the applicants/accused with the alleged offence or forming any unlawful entity, participated in the commission of the offence or facilitated the men accused in commission of this heinous crime. Tentatively, at this stage their case, therefore, cannot be equated with the case of the men accused. It is my tentative opinion that the recovery of CD and the computer by the prosecution cannot have any material bearing or the involvement of the applicants/accused in the case.
No doubt the rape of any person is an abhorrent, condemnable and a deplorable offence, not against the victim alone but society at large and the grant of bail before arrest is not the rule in such cases and the grant of bail could only be considered when such cases falls within the parameters of section 497(2), Cr.P.C. In the present case there are conflicting versions for consideration before the Court which would require further inquiry within the meaning of section 497(2), Cr.P.C, and as such the freedom and liberty of the applicants/accused should not be curtailed and the applicants/accused put behind bars in haste without observing legal prudence and fulfilling legal requirements. The question of benefit of a reasonable doubt is necessary to be determined not only in deducing the question of guilt of the applicants/accused but should also be considered while considering the question of bail as there is an appreciable difference between confinement and free life.
For the reasons and discussions as aforesaid, I have preliminary come to the conclusion that this is a fit case for further inquiry within the meaning of section 497(2), Cr.P.C. And accordingly the applicants/accused are entitled to the confirmation of the pre arrest bail. Accordingly the pre- arrest bail granted to the applicants/accused is hereby confirmed on the same terms and conditions. The above discussion and findings are only tentative in nature and should not influence or prejudice the trial court in arriving at a just and fair decision, based on the evidence to be adduced at trial.