' SYED MUHAMMAD FAROOQ SHAH, J.---By this single order, the captioned matters arising from common crime are taken and decided together.
2. Undoubtedly, the institution of police is to regulate preservations of order and enforcement of law but the facts of the present case transpire that guards being protectors of public security and tranquility are involved by the complainant without any animosity in heinous offence of committing "Zinna"/attempted to commit "Zinna" to his teenager sisters after making their abductions on gun points, which act tends to shake the legal, moral and religious criminal administration system, more particularly, specific role in commission of offence have been assigned to the accused persons, which is also a crime against the society.
3. By order dated 12.11.2013, accused police inspector Abdullah s/o Muhammad Khan Awan, who was previously posted at police station Raunti, was admitted on bail in case crime No. 69/2013 of police station Khambhra, by learned IV-Additional Sessions Judge, Mirpur Mathelo. In penultimate paragraph, the learned trial court has observed that statement of both the ladies under sections 161 and 164, Cr.P.C. And MLC are contradictory and on such ground the concession of bail was extended to the accused, being a case of further inquiry, failing within the purview of section 497(2), Cr.P.C.; more or less on similar grounds, the bail was granted to another accused/ police constable Arbelo vide order dated 12.11.2013. Another police constable/accused Abdul Razzak, who was also involved in aforementioned crime has also been granted the concession of bail by the trial court on the same date and almost on the same ground. In para No.2 of all aforementioned bail orders the learned court has narrated the facts in the following manners:- "Precisely, facts disclosed in the FIR in some detail are that the complainant had received petition order in Cr. Misc. Appln. No.1566 dated 12.10.2013 from Sessions Judge, Ghotki and incorporated the facts of petition, wherein one Noor Hassan son of Hassan Ali by caste Rajput R/o Khambhra, Taluka Ubauro disclosed that he had six sisters out of them three were married and Mst. Najma & Mst.
Asma both major ones and Mst. Naila aged about 8/10 years were living with him. Petitioner had further alleged that on 10.10.2013 at about 07-00 p.m. In the evening, he was present with his sisters and mother when PC Abdul Razaque Malik and other un-identified police constables forcibly entered into his house with weapons in their hands and who took hold of Mst. Najma as well as Mst.
Asma and drove them to a white car outside the house and left, thereafter, Noor Hassan raised cries whereupon villagers gathered and he had narrated them the whole incident and they all went to P.S Khambhra where S.H.0, namely, Abdullah Awan met with them to whom they disclosed the incident and who by giving hopes as well as directing them to keep patience promised return of both Mst. Najma and Mst. Asma but had been keeping them on hopes. On 11.10.2013 at about 09/10 hours, the said S.H.0 summoned the petitioner to take back his sisters as such he went at the residence of S.H.O. Where his both sisters were present and he brought them to the house where Mst. Asma told him that S.H.O. Abdullah Awan had forcibly summoned her in his room and forcibly committed rape, then he left her there unconscious whereas Mst. Najma told him that RC Arbelo and P.C. Abdul Razaque along with two un-identified accused forcibly called her and put off her clothes whereupon she raised cries that she was observing menstrual periods who seeing the bleeding left her then the petitioner went to P.S where the S.H.0"extended threats of his implication in false cases where after petitioner went to the Sessions Judge/Justice of Peace, Ghotki there he filed petition asking for issuance of letter for medical examination.
4. Arguments heard. Record perused.
5. Mr. Rasool Bux I. Siyal, representing the applicant/complainant Noor Hassan Rajput, brother of victims, at the very outset submits that the aforementioned heinous act of the police personnel has developed sense of insecurity amongst the people, that the police personnel who being responsible to safeguard the law are not suppose to do such a heinous offence to fulfill their bodily lust. Learned counsel submits that such violent offence of brutality amounts to a barbarian act, committed by S.H.O/police inspector Abdullah Awan, who forcibly raped Ms. Asima and other two co-accused facilitated him and they have also attempted to commit rape upon Ms. Najma who was observing menstrual periods hence she had been let-off. It is submitted that the medical opinion supports the version of complainant side. It is contended that all the police officials/accused mischievously just to save their skin have involved both victims in Crime No. 68/2013 at P.S Khambhra, who were proved to be innocent during course of investigation and such report was furnished by the Investigation Officer before the competent court of law as well as before this court and this court has also taken a serious notice against such act.
6. To support of his contentions, learned counsel placed his reliance on the cases of Shoukat alias Shafqatullah v. The State (PLD 2012 Sindh 174), Muhammad Ramzan v. The State and others (2012 MLD 579), Muhammad Ramzan v. The-State and another (2011 YLR I569-Lahore), Abdul Ghafoor v.
The State and another (2012 MLD 142-Peshawar), Haji Ahmad v. The State (1975 SCMR 69), Haji Gulu Khan v. Gul Daraz Khan and another (1995 SCMR 1765).
7. Conversely, learned A.P.G has supported the arguments of learned counsel for the applicant.
Arguments advanced by other side have also been considered.
8. It appears that by an order dated 20.01.2014, passed by this Court in C.P. No. S-3450/2013, the DIGP Sukkur was directed to submit the detailed reports in view of observations recorded by Hon'ble Supreme Court that any police official/officer, if involved in a criminal case, he may not be posted as S.H.O., hold any field posting till disposal of his criminal case. The comments were also called from the trial court, who has granted bail to the above named accused persons. Learned IV- Additional Sessions Judge, Mirpur Mathelo, by raising no objection to transfer the case to any other court, submitted that he has issued legal process (B.Ws) against the prosecution witnesses and that it was upto to the applicant/victims to explain as to why they had not attended the court for recording their respective evidence. Learned Sessions Judge commented upon the transfer of case wherein the applicant has stated that they have genuine apprehension that "fair and impartial trial of the case cannot be held by respondent No.1 (IV-Additional Sessions Judge, Mirpur Mathelo)", who is allegedly acting in strenuous consideration, more particularly, the respondent No.2 is a very influential police official, is publicly known as drunkard and accomplice of criminals having un- fettered powers of police officer, who mis-used his powers and position and committed offences involving moral turpitude. It is further averred in the transfer application that the accused persons are advancing threats of dire consequences to the applicant and victim ladies and other witnesses to withdraw from the prosecution cases registered against them, otherwise, the PWs would be booked in false and planned FIRs. In such context C.P No. S-3450/2013 has also been filed in this court. The applicant in para No.11 of the transfer application, submitted that the accused are not attending this court and are causing pressure and harassment upon complainant, in result of which, the applicant and victim ladies are unable to get shelter in their parental house and are hiding hither and thither in order to avoid harassment and humiliation of police and are unable to pass peaceful life as guaranteed by the law.
9. It is the case in which two young girls were not only abducted, humiliated, harassed and disgraced but one of them was subjected to sexual intercourse by the lust of the accused, I am, therefore, of the view that while granting bail to the respondents, the learned trial court acted illegally and in violation of the settled principle of grant of bail. It is true that to decide the fate of bail application, tentative assessm ent of the material available on record is to be considered but it does not mean that the trial court to find out discrepancies of minor nature, while considering the ground of further inquiry into the guilt of the accused. Admittedly, the offence against which the respondents are charged is of heinous nature.
10. On tentative assessm ent of evidence it is not possible to hold that the case would fall within the scope of further inquiry under section 497(2), Cr.P.C. Every hypothetical question which may be imagined would not make it a case of further inquiry, simply for the reason that the same can be determined after evaluation of evidence; moreso, there are no sufficient grounds for further inquiry into the guilt of the applicant/accused with which they are charged. In the instant case the fact that there is some contradiction in between ocular and medical evidence cannot be safely considered prior to the evidence, more particularly, with regard to heinous offence which falls within the purview of prohibitory clause of section 497 of Cr.P.C.
11. For the foregoing reasons, the impugned orders whereby the bail was acceded to the respondents are hereby cancelled. Resultantly, the Cr. Misc. Applns. Nos.812/2013, 813/2013 and 814/13 are allowed. Bail bonds of accused are cancelled.
12. Keeping in view aforementioned facts and circumstances, the Deputy Inspector General of Police @ Sukkur and respondent No.4 in C.P No. S-3450/2013 are directed to restrain the nominated accused in Crime No. 69/2013 or any person acting on their behalf, not to cause harassment to both the victim ladies and their relatives including family members, who shall be provided legal protections of life, honour and property in accordance with law and as guaranteed by the Constitution of Pakistan as well. C.P No. S-3450/2013 is disposed of accordingly.
13. The complainant including victims have shown apprehension that fair and impartial trial of the case cannot be held before the trial court/respondent No.1, who according to them is acting in extraneous manner, more particularly he has issued bailable warrants against the complainant and victim girls and in his comments, the learned IV-Additional Sessions Judge, Mirpur Mathelo has failed to show any sufficient reasons or plausible cause for issuance of B.Ws against the victim girls and their brother, which is a sufficient ground for withdrawal of Sessions Case No. 461/2013 from his file. Consequently, the Criminal Transfer Application No. 13/2014 is allowed. Sessions Case No.461/2013 is withdrawn from the file of learned IV-Additional Sessions Judge, Mirpur Mathelo and transferred to the learned Sessions Judge Ghotki, with directions to the learned Sessions Judge Ghotki to proceed the case strictly on merits, by adopting the mode of fast track and decide the case expeditiously, he shall adopt all necessary endeavour to provide legal protections to the prosecution witnesses, in accordance with law.
14. All the aforementioned cases are decided in the manner indicated above.