' SALMAN HAMID, J.---Instant bail application under section 497, Cr.P.C. Has been moved by the present applicants namely, Ramoon alias Ramzan, son of Muhammad Bachal and Veerio, son of Shankar (the Applicants), after dismissal of their Criminal Bail Application No,91 of 2010 by the Additional Sessions Judge, Tharparkar at Mithi in terms of his order dated 15-6-2010.
2. Briefly, for the purpose of disposal of this bail application, the facts extracted from the record of the file are that the complainant namely Novo, son of Beejlo on 17-2-2010 at about 2200 hours lodged F.I.R./Crime No,8 of 2010 before Police Station Nangarparkar, District Tharparkar that on 24- 1-2010 around 1700 hours his daughter, Shr: Kastoori went for grass for the cattle and when she did not return despite lapse of considerable time, he went to check for her and found that she was missing. The complainant noticed footprints on the ground and suspected that his daughter has been abducted/kidnapped. Resultantly he along with Chanoo, son of Gopo Kolhi and Lakham, son of Nebo traced the footprints which were of two persons and reached at some distance from where the foot prints disappeared in the jungle and were replaced by wheel marks of a four- wheeler (commonly known as "Jeep" here a name of an American four wheel driver vehicle/sports utility vehicle (SUV)). According to the complainant, he along with the other two named persons followed the wheel marks of the four wheeler and at about 4-00 a.m. Reached at the place of one Muhammad Bachal Khoso and saw that the present applicants were standing outside of the place of Muhammad Bachal Khoso, where one Ghulam Nabi was also present. Seeing the complainant and the other two persons coming towards them they fled away. The complainant hearing cries of Shr. Kastoori from the place went inside and found that she was tied up. They came back with Shr.
Kastoori to the village. Shr. Kastoori upon her return narrated the ordeal in the terms that while she was busy collecting grass, the applicants came to her. Applicant No,1 was armed with pistol. The applicants forcibly took her in the jungle where the applicant No,1 raped her. Thereafter, four wheeler came in which other co-accused Habibullah and Ghulam Ali were sitting and that all four persons took her to the place of Muhammad Bachal Khoso where she was tied up and was subjected to rape by the applicant No, 1.
3. In the first instance the complainant approached the notables and Muhammad Bachal Khoso for a decision and such not coming forth despite lapse of considerable time, the complainant on the aforementioned date and time lodged F.I.R. Under sections 376, 365-B, 341, 342 and 34, P.P.C.
Against the applicants and other co-accused.
4. The learned counsel for the applicants argued that the prosecution story is false, fabricated, untrustworthy and highly unbelievable and is without any independent or corroborative piece of evidence and is a result of mala fide of the complainant and that the co-accused Habibullah and Ghulam Ali have been granted pre-arrest bail and that the final medical certificate dated 27-2- 2010 shows that no rape on Shr. Kastoori was committed and that despite the fact that Applicants were present in custody, their medical examination was not conducted. It was also argued that the complainant has filed the present case at the behest of local Landlord namely Ali Muhammad Khoso, son of Lal Khan Khoso who was instrumental in murdering the sister of the applicant No,1 and that the enmity is still continuing. It was also argued that Channo, son of Gopo Kolhi who was stated to be with the complainant at the time of recovery of Shr. Kastoori sworn an affidavit to the effect that he was not available at the scene of alleged incident and that his name has been given by the complainant without his knowledge. Delay in lodging of the F.I.R. Was also argued besides arguing that the allegation of rape on the applicant No,1 is concocted inasmuch as that it was beyond imagination that such could be committed by him in presence of his brothers. In support of his above arguments, the learned counsel for the applicants relied upon 2007 M LD 1313, 2009 M LD 171, 2010 YLR 1035, 2010 PCr.LJ 954 and 2008 SCM R 980.
5. Appearing on behalf of the State, the APG fervidly contested the application for bail and vigorously argued on the grounds that the matter was reinvestigated by the authorities inasmuch as that earlier in time the investigation was made baisly by the former I.O. Who favoured the coaccused/the applicants and that punitive action against him was also taken. Whereby he was removed from service. The learned APG developed his argument on above premises and stated that the mala fide involvement of the applicants and the co-accused was patent inasmuch that the applicants and co-accused prima facie tried to influence the investigation, managing to squirm out from the commission of heinous crime of kidnapping and raping a tender aged girl of 17 years. As far as the medical examination report is concerned, it was pointed out by the learned PAG that Annexure-I to the bail application i.e, the medical report opines that Shr. Kastoori was subjected to "sexual intercourse in the recent past " (emphasis provided).
6. On the force of above opinion of the Medical Board, it was argued by the learned APG that prima facie it shows that indeed Shr: Kastoori was subjected to intercourse in the recent past and therefore connection of such recent intercourse with the applicant No,1 cannot be ruled out, specially at the time of bail stage when the evidence has to be. Gauged only tentatively. On delay in lodging of the F.I.R., it was argued that since attempts were being made among the parties for an amicable resolution, delay was made.
7. Heard arguments.
8. The narration of above events would clearly show that Shr. Kastoori was kidnapped and was then subjected to rape and that the co-accused and the applicants had been arrested for such an offence by the police concerned and that the medical report clearly shows that Shr: Kastoori was subjected to "sexual intercourse in the recent past". Not only this, the record of the file would show that the statement of Shr: Kastoori was recorded by the Sessions Judge, Tharparkar at Mithi wherein she stated as under: "I am an adult Hindu lady. In the month of January 2010 (I do not remember, the exact date) one Ramzan Khoso came to me from one side having pistol in his hand while the other person namely Veerio Guriro came to me from other side and put his towel on my mouth. Then both of them, brought me in a jungle and then Ramzan Khoso called the vehicle from Nangarparkar city on mobile phone. The vehicle was brought by driver Habibullah and Ghulam Nabi. Then all the four accused persons jointly removed my gold and silver ornaments from my ear, neck and leg, ankle, and then they brought me in the Otak of one Bachal Khoso through the said vehicle. Where the accused namely Habibullah, Veerio and Ghulam Nabi stayed out side the Otak while the accused Ramzan Khoso came inside the Otak and forcibly removed my wearing cloths and then committed rape upon me, could not raid cries because my mouth was closed and my both hands were tied on my backside. In the mean time at the time of Fajar prayer my inmates also came to me by tracing us. By seeing my inmates all the four accused persons ran away from the spot. Thereafter, my uncle Chano got me released and then brought me to his own house. My medical examination was also conducted by WMO Dr. Indra at Civil Hospital Mithi. Being dissatisfied with the report, I challenged it before the Medical appellate Board where I was again examined by some Gynecologist and the members of the Board. I do not want to depose further except above and pray for justice".
9. Looking at the above statement of Shr. Kastoori, it would be evident that it was consistent with the contents of the F.I.R. And that she has very clearly and categorically mentioned the names of the applicants and the co-accused despite lapse of considerable period of time. It seems that the horrendous event has been impressed in her mind very clearly and intensely and haunts her every now and then and therefore noninvolvement of the applicants and the co-accused at bail stage cannot be judged as tentatively the evidence of the victim suggests their active association with the crime they are charged with.
10. As far as the delay in lodging the F.I.R is concerned, looking at the circumstances of the case and social fabric of the complainant and other locals of the area from where this case has emerged, one can not rule out active participation of the elders in finding a way out for reconciliation. It goes without saying that may be reconciliation was delayed from the side of the co-accused/applicants to maneuver the ground of delay in the event of failure of reconciliation.
Looking at the circumstances of the case, the delay in lodging F.I.R. Is not of much consequence and if measured from the attending circumstances, can perhaps be disregarded at least at this interlocutory stage. The precedents relied upon by the learned counsel for the applicants are of no assistance. In the case of "Muhammad Wali Farooq v. The State" 2007 M LD 1313, the accused therein was enlarged on bail on the solitary ground that there was only statement of the abductee that she was subjected to zina and no other evidence, incriminating the accused. However, in the present case, there is evidence in shape of medical report, which gives an opinion that Shr. Kastoori was subjected to "sexual intercourse in the recent past". The case of "Zeeshan Ali Butt v. The State"
2009 M LD 171 is also of no assistance to the applicants inasmuch as in that case bail was granted to the accused looking at the allegation of zina-bil-jabr by the accused therein with the abductee in presence of accused's mother and other family members. In the case in hand the applicant No,1 did not commit zina-bil-jabr in presence of his mother or other family members. Looking at the deterioration of moral characters of the members of our society, it is quite possible that Shr: Kastoori was subjected to zina in presence of his other two brothers which was not novel. The case of "Muhammad Javed lqbal v. The State" 2010 YLR 1035 is also not applicable in the present facts and circumstances of the case inasmu ch as in that case bail was granted to the accused on the ground that offence under section 365B, P.P.C. Was deleted during the investigation and that there was no chemical examiner's report against the accused in respect of commission of zina whereas in the present case the medical report is very much on the record of the file, which medical report supports the ocular account and therefore prima facie implicates the applicants. No section from the crime case from which present bail application has emerged has also been deleted. Similarly the case of "Jameel Akhtar v. Mst. Tehsila" 2010 YLR 1036 is also of no help to the applicants as in that case the Court having come to the conclusion that a case of further inquiry has been made out, the accused was enlarged on bail. No further inquiry in my opinion is necessary in the present case. In the case of "Tahir alias Biloo and another v. The State" 2010 PCr.LJ 954, the accused therein was enlarged on bail because the chemical report which was submitted was in negative and that supplementary statements were also recorded. Again in the present case the medical report prima facie implicates the applicants with the commission of offence of which they are charged with. In the case of Alam Chand alias Allomal and two others v. Jameel Ahmed and another 2008 SCM R 980, pre-arrest bail was granted to the accused on the grounds of enmity and mala fide registration of F.I.R. Which according to me is not the case here.
11. Coming to the arguments of the learned counsel for the applicants that Chanoo, son of Gopo who accompany the complainant at the time of recovery of Shr. Kastoori having sworn on affidavit to the extent that at the time of alleged incident neither he was available at the scene nor did he see the accused persons and that his name was given by the complainant malafidely on his own wish and accord is self destructive inasmuch as that in third paragraph of his affidavit he voluntarily stated that the accused persons are innocent and have been malafidely roped in the case due to old enmity of local landlord Ali Muhammad Khoso who earlier committed murder of the sister of the application No,1 and that the complainant is a hari of said landlord. The contents of paragraph 3 of the affidavit prima facie shows that Chanoo has been won over by the applicants when he voluntarily says that "the accused persons are innocent". Chanoo by no means was qualified to voluntarily state that the accused persons are "innocent" as nothing was shown by him to establish that at the time of incident the present applicants were some where else or that Chanoo was their alibi. The other person namely Lakaman who was present with the complainant at the time of recovery of Shr. Kastoori has not come forward and stated that Chanoo was not present with the complainant and him (Lakaman) at the time of recovery of Shr. Kastoori.
12. In the view of the above, the applicants have made out no case I E of bail and therefore, the present bail application is dismissed.
13. It goes without saying that the observations made hereinabove shall not in any manner come into the way of the trial Court in deciding and reaching to the just conclusion of the case after its trial.