1. ' SHAHID ANWAR BAJWA, J.---For reasons to be recorded later, Criminal Bail Application No,281 of 2011, was allowed, vide short order, dated 22-8-2011 and the applicant was ordered to be admitted to bail upon his executing personal bond in the sum of Rs,2,00,000 with one solvent surety in the like amount, to the satisfaction of the trial Court and, in Criminal Bail Application No,1156 of 2010 interim bail granted, vide order, dated, 26-12-2010, was confirmed on the same terms. Following are the reasons for the short order, passed in open Court.
2. ' F.I.R. No, 202 of 2010 was recorded at Police Station, Bhirya City on 16-10-2010 at 2100 hours for an incident, alleged to have taken place at 6-30 p.m. Of the same day. Complainant was one Ghulam Hussain. He stated that a few days back, a girl from the house of Hashim Luhrani had left her house for which, a relative of complainant was suspected by the girl's family. On the day of the incident, at sunset time, when complainant, his two relatives and his daughter Mst. Naveeda, aged about 13 years, and other family members were present a group of 12 persons, including all the three applicants in these bail applications, came, gave blows to the complainant party, gave proverbial Hakal and forcibly dragged Mst. Naveeda, after giving her blows and while doing so, they resorted to aerial firing. It was stated in the F.I.R. That Mst. Naveeda was dragged away, while inflicting blows to her, to the back side of the house where she was made to sit in a white colored car. The applicant in Criminal Bail Application No, 281 of 2011 is alleged. To be driving the car while some of the accused persons sat in the car and other persons sat on four motorcycles parked there and drove away while resorting to aerial firing. The alleged kidnappee/abductee was recovered on 27- 10-2010 at 7-00 p.m. From a bus station. Her medical examination was conducted on 28-10-2010 and the following findings were recorded by the.Medical board:--
(1) Age: 16/17 years.
(2) No any mark of violence seen on whole body including pubic region and breasts.
(3) No any mark of violence seen nor any redness or tears seen: vulva and vagina normal.
(4) As per vaginal examination, no any internal violence seen. Tears bleeding or discharge were absent. .Hymen was absent and vagina admitted two fingers.
3. ' Three internal and three external swabs were taken and sent for chemical examination. Chemical Examiner reported that on all the three internal swabs, human semen was detected.
4. ' Mr. A.R Faruq Pirzada, learned counsel for the applicant in Criminal Bail Application No, 281 of 2011, made the following submissions:--
(1) Contents of F.I.R. Are falsified by medical evidence because no abrasion on any part of the body was seen in spite of the fact that it was alleged in the F.I.R. That the alleged abductee was repeatedly given blows and dragged to the vehicle.
(2) Statement of alleged abductee under section 164, Cr.P.C. Was recorded on 28-10-2010. She alleged that all the 12 persons committed rape upon her and she named six persons only because she claimed that they called each other by those names. No identification parade was held.
(3) The medical evidence indicates that the alleged abductee was not raped and was habitual in having sexual relations.
(4) Benefit of doubt must be given to the accused persons, even at the bail stage.
(5) The applicant in Criminal Bail Application No, 281 of 2011 was, on the material date, admitted in Rural Health Centre, Bhirya City and, therefore, claims alibi.
5. ' On the ground of alibi, learned counsel relied upon the case of Said Akbar v. Gul Akbar, 1996 SCM R 931, Muhammad Saleheen v. Arshad Siddiq, 1997 SCM R 1829 and Ajmal Khan v. Liaqat Hayat and another, PLD 1998 SC 97. On the question of conflict between medical and oral evidence, learned counsel relied upon Haji Maa Din and another v. The State and another, 1998 SCM R 1528. Learned counsel submitted that even if tentative assessment discloses discordance between ocular and medical evidence, the bail should be allowed and relied upon Syed Abdul Baqi Shah v. The State, 1997 SCM R 32.
6. ' Mr. Maqbool Ahmed Awan, learned counsel for the applicants in Criminal Bail Application No, 1156 of 2010, in addition to adopting arguments of Mr. Pirzada, made the following submissions:--
(1) Although the Police Station was only a kilometer away, yet F.I.R. Was lodged after a delay of three hours and this delay has not been explained.
(2) Manner of recovery of the girl creates doubts as she stated that when Police put pressure, she was released by abductors.
(3) No piece of clothing of the girl has been produced to establish rape.
(4) In terms of provisions, contained in section 156-B, Cr.P.C, investigation should have been conducted by an officer not below the rank of Superintendent of Police and in the present case, the investigation was conducted by an Assistant Sub Inspector and, therefore, the entire investigation is vitiated. Learned counsel relied upon Shoukat Ali v. The State, 2008 SCM R 553.
7. ' Mr. Mushtaque Ahmed Abbasi, learned counsel for the complainant, made the following submissions:-
(1) The name of the applicant in Criminal Bail Application No, 281 of 2011 transpires both in the F.I.R.
8. As well as in the statement of the abductee, recorded under section 164, Cr.P.C.
(2) Five empties have been recovered (Three of .12 bore and two of .32 bore) from the place of Vardat and pistol had been recovered from Nisar, the applicant. Mashirnama of plate of incident indicates that wall of house had pock marks. However, the learned counsel conceded that no report of any ballistic expert has yet been available.
(3) The medical report has been managed because the applicants are very influential persons.
(4) There is no previous enmity; therefore, there is no reason to believe that the applicants would be falsely implicated by a girl of tender age.
(5) In a bail before arrest, humiliation and harassment at the hands of Police are necessary ingredients, which are absent in the present case.
9. ' Learned counsel, in support of his contention that plea of alibi by applicant Nisar, not being firstly credible and secondly not taken before the I.O. Or in the first bail application, should not be considered, relied upon Shoukat Illahi v. Javed Iqbal and others. 2010 SCM R 966. He submitted that no bail is to be granted when there is direct allegation of rape and relied upon Rashad v. The State, 2002 SCM R 1329. Learned counsel submitted that it was a heinous crime and, therefore, bail should not be allowed. He relied upon Muhammad Bilal v. The State, 2008 PCr.LJ 650. Learned counsel submitted that applicant Abdul Salam has made contradictory statement. He stated before the Police that he was at Tando Adam but in the application for legal protection, safety, etc. Before the Sessions Judge, Naushahro Feroze, he stated that on the fateful night, he was present at his own Otaq.
10. ' Mr. Shyam Lal, learned A.P.-G., opposed the bail applications and made the following submissions:-
(1) Witnesses have fully supported the F.I.R. However, the ingredients of section 364. P.P.C. Are not made out because no intention to commit murder has been alleged.
(2) Abductee has given statement under section 164, Cr.P.C. And the allegation of rape is corroborated by the report of medical examination and tentative assessment makes it a case falling within section 376(2), P.P.C.
(3) Deeper appreciation cannot be undertaken at the bail stage and absence of violence marks should not be considered at this stage.
(4) Abductee has herself identified the accused persons and identification parade, in such circumstances, is not necessary. He relied upon Dr. Javed Akhtar v. The State, PLD 2007 SC 249.
11. ' Exercising his right to reply, Mr. Pirzada submitted that Mashirnama of place of Vardar shows pock marks on the wall, foot marks and motorcycle tread marks but does not show any dragging mark.
12. He further submitted that there is no evidence of any violence on any one and concluded by saying that swa bs were sent for chemical examination after an unexplained delay of 8 days.
13. ' I have considered the submissions, made by the learned counsel and have also gone through the record.
14. ' One of the grounds, urged by Mr. Pirzada, was that applicant Nisar was, on the material date, admitted in a Rural Health Center, Bhirya City. In this regard, he relied upon a medical certificate, dated 5-11-2010, issued by Medical Officer, Rural Health Center, Bhirya City, stating that applicant Nisar was under his treatment from 25-10-2010 to 28-10-2010 and admitted in that Hospital as an indoor patient and was treated and diagnosed as a case of gastroenteritis. Learned counsel firstly relied upon Said Akbar's case (supra). The plea of alibi, taken in that case, was that on the day of incident, the appellant was lodged in Charsada Jail in connection with an offence under Section 13 of the Arms Ordinance. The Supreme Court - after observing that in a case of capital charge, a plea of alibi, in the peculiar facts and circumstances of the case, was justified and bail can be granted, however, did not grant bail because an eye witness had stated presence of appellant at the scene of occurrence. In Saleheen's case (supra), it was observed that a plea of alibi may not be rejected, and can be gone into for the purpose of grant or refusal of bail. In that case, PIA tickets and other documents had established that the appellants were in Saudi Arabia in connection with performance of Umra and plea of alibi was accepted. In Ajmal's case (supra), Said Akbar's case (supra) and Saleheen's case (supra) were relied upon but the alibi was not accepted because place of occurrence and place of duty of the respondent were hardly at a distance of 8 kilometers from each other and the possibility that he could have gone unnoticed to that place could not have been ruled. On the other hand, learned counsel for the complainant relied upon Shoukat Illahi's case (supra). It was contended in that case that the petitioner was not present at the scene of incident and taking plea of alibi before Police, he produced affidavits of 16 persons and Police, consequently, exonerated him. Supreme Court observed, in respect of plea of alibi, that the appellant did not raise such plea when he moved bail before arrest application and that would mean that he had no such defence at that time. It was also observed by the Supreme Court that plea of alibi, based upon affidavits of a number of persons, could snot be appreciated at the bail stage as it required deeper appreciation.
15. ' The above case-law indicates that there is no bar upon the Court considering a bail application, even in a case involving capital offence, to consider alibi. However, while there is no bar to such consideration, A the Court cannot undertake deeper appreciation of the evidence at the bail stage and will have to confine itself to tentative assessment. Thus, the Supreme Court accepted alibi in a case where the person was established to be outside Pakistan but declined" accepting alibi in two cases when the distance between the place of occurrence and stated presence at another place of the applicant was a short one and eye witness had clearly identified the applicant to be present at the place of occurrence. In the present case, witnesses have identified the applicant to be present at the place cf occurrence and the alibi is that the applicant, for a disease like gastroenteritis, was admitted in a place like a Rural Health Centel, and that too for five days. It would require evidence and deeper appreciation whether such plea can hold water or not and such deeper appreciation cannot be undertaken at the bail stage. Consequently, the contention of Mr. Pirzada that the application of applicant Nisar should be allowed on the ground of alibi is without any substance.
16. ' Mr. Maqbool Ahmed Awan referred to section 156-B, Cr.P.C. And contended that in terms of that Section, investigation should have been conducted by a person not below the rank of Superintendent of Police and, in the present case, investigation was conducted by an Assistant Sub-Inspector. He relied upon Shoukat Ali's case (supra). Section 156-B, Cr.P.C. Is reproduced as under:- ' Section 156-B Investigation against a woman accused of the offence of Zina. Notwithstanding anything contained in this Code, where a person is accused of offence of Zina under the Offence of Zina (Enforcement of Hudood) Ordinance, 1979 (VII of 1979), no Police Officer below the rank of a Superintendent of Police shall investigate such offence nor shall such accused be arrested without the permission of the Court.
17. ' Explanation. In this section 'Zina' does not include ' Zina-bilJabr'.
18. ' A simple reading of the Section indicates that where a person is accused of Zina, no Police Officer blow the rank of Superintendent of Police shall investigate nor such accused be arrested without the permission of Court. Explanation to the Section clearly states that Zina does not include Zina- bil-Jabr. Word Zina has been defined in section 4 of the Offence of Zina (Enforcement of Hudood)
19. Ordinance, 1979 and it is: "a man and woman are said to commit Zina if they wilfully have intercourse without being married to each other." Keyword in the present context is "wilfully". In the present case, it is alleged that not Zina but Zina-bil-Jabr was committed and, therefore, the contention of learned counsel by relying upon section 156-B, Cr.P.C. Does not appear to be correct.
20. Contention of Mr. Maqbool Ahmed Awan that Police Station was only half a kilometer away and yet it took complainant three hours to lodge F.I.R. And this delay creates doubt. I am unable to agree. In cases involving commission of an offence on a female, the family does hesitate some time for weeks before approaching Police and in such nature of cases, delay of three hours and some time a number of days would not be of material consideration. Reference may be made to Mst. Shamim Akhtar v. The State, 2010 PCr.LJ 135.
21. ' In the present case, what is alleged is rape and learned counsel for the complainant relied upon Rashad's case (supra) to contend that in such like cases, bail is not to be granted. Facts of that case were that a woman complained that at Sehri time, she had gone out of her house to ease herself where Rashad appeared with a Revolver and threatened her to remain silent and took her to his. Baithak and committed Zina-bil-Jabr. Upon release, she came out and raised hue and cries, which attracted her father and prosecution witnesses to whom she narrated entire incident. They tried to catch the petitioner but he managed to decamp. There were only two contentions of the counsel for the petitioner before the Supreme Court. Firstly, it was an unseen incident and, secondly, there was delay of 6/7 days in lodging of F.I.R. The Supreme Court observed that direction to conclude the trial had already been issued by the High Court and, therefore, it did not interfere with the order, passed by the High Court. Supreme Court also observed: "moreover, a direct allegation of committing Zina had been levelled against the petitioner". This case does not appear to be an authority for the conclusion that the learned counsel wants us to draw because there are aspects of the present case, to which I shall revert later, which distinguish the present case from the reported case. In any case, each case, and this is more true in criminal cases, is to be looked at, both at bail stage as well as at the stage of final decision, in the light and context of its own peculiar facts and circumstances.
22. ' There are two pieces of evidence against the applicant. Firstly, statement under section 164, Cr.P.C.
23. Of the alleged abductee wherein she has stated, firstly, that she was subjected to rape by 12 persons and, secondly, she identified six persons because they called each other by those names.
24. Second piece of evidence is statement of the complainant that the petitioner was dragged to the car and was taken away. As to the second piece of evidence, contention of Mr. Pirzada that, firstly, no bruises, whatsoever, have been reported in the medical report and, secondly, though pock marks on the wall, foot marks on the ground and tread marks of motorcycle have been reported in the Mashirnama of inspection of place of Vardat, no dragging marks have been shown in such Mashirnama. When the two are put in juxtaposition, a serious doubt appears to be cropping its head and bubbling up to say that dragging might not have taken place.
25. ' Learned counsel for the complainant submitted that a Pistol has been recovered from applicant Nisar but there is no report that, that particular Pistol was used and no ballistic expert's report has yet been obtained; therefore, as far as the question relating to recovery of Pistol and its alleged use at the time of occurrence is concerned, it is certainly a case of further inquiry.
26. ' This takes me to the question of statement under section 164, Cr.P.C. There are five circumstances, which led me to the conclusion that this bail application should be allowed: firstly, the only piece of] identification is that according to the alleged abductee, culprits called E each other by those names. There has not been any identification parade. Learned A.P.-G. Relied upon the case of Dr. Javed Akhtar (supra) for his contention that in such like cases, identification parade is not necessary. What was held by the Supreme Court in the reported case is that identification parade is immaterial if the identification of accused is proved by other convincing evidence. Facts of the reported case were that the complainant stated that she had gone for shopping and as she came out of the shopping centre and returned to her vehicle and was about to start her car, a car came from which one person came out, pointed Pistol at her and ordered her to come out of car. She came out of her car and started shrieking, which attracted P.W Zahid Shah. Upon this, culprit and his accomplices fired and decamped. Complainant failed to identify the accused persons in identification parade. However, the injured identified the accused person. Facts of the reported case were materially different from the present case because in the present case, all that is alleged is that the culprits called each other by such names. Secondly, the medical evidence does not show any marks of violence on any private part of body of alleged abductee. Contention of Mr. Pirzada that there is a conflict between medical and oral evidence is not without substance and, in this regard, he relied, upon Haji Maa Din's case (supra). It was alleged in the F.I.R. That Fida Hussain gave Danda blows on the right calf whereas the doctor found fracture of tibia and fibula bones. It was also alleged that Mohammad Moosa caused injuries by Dandas whereas medical evidence found inside wounds. Supreme Court, thus, held that these discordancies created doubt. In Syed Abdul Baqi's case (supra), eye-witness deposed that the petitioner gave repeated stick blows on the head of deceased but no injury, blunt or sharp, was found on the head of the deceased by doctor and all the injuries were found as having been caused with a sharp weapon and this discordance between ocular and the medical evidence, from tentative assessment, weighed with the Court at the time of granting bail. In the present case, it is alleged that the alleged abductee was given lot of kicks and fists blows and similarly, blows were also caused to other persons of the complainant party but only medical examination of the alleged abductee has taken place and no injury is reported and, as far as the other persons were concerned, they were not even medically examined. Thirdly, no redness or tears or recent tearing of hymen has been reported in the medical report. Fourthly, learned counsel for the complainant submitted that medical certificate is a managed one. That certainly makes a case of further inquiry; and, fifthly, a girl is claimed to have been raped by about a dozen persons after having been dragged and the clothes, that she was wearing, have not been shown in any document.
27. ' I have deliberately stayed away from commenting on other aspects of the medical examination, firstly, because essentially in the matter, character of a female person is involved and, secondly, it is domain of deeper appreciation and that is reserved for the trial Court.
28. ' Above are the reasons for the short order; dated 22-8-2011.