TARIQ MEHMOOD JAHANGIRI, J. Through the instant petition, the petitioner seeks bail after arrest in case FIR No. 442/2021, dated 06.07.2021, offence under sections 354-A, 506(ii), 342, 509, 395, 384, 375-A, 377-B, 114, 412, 34, P.P.C., registered at Police Station Golra, Islamabad.
2. On 06.07.2021, SHO Police Station Golra, Islamabad reported that he was on duty of general checking at GoIra Darbar Chowk, at about 09:50 p.m. A video clip went viral on social media twitter account, which was seen by him and other police officials, present on duty, wherein it was found that 5/6 people have confined an unknown boy and girl in a room and making them naked on gun point, issuing threats and were doing indecent/obscene acts with them, upon spy information, it revealed that the place shown in the video was a room of Flat No. 417, 4th Floor Magnum Heights, E- 11/2, Islamabad and four accused namely (1) Muhammad Usman Ibrar, (2) Hafiz Atta-ur-Rehman,
(3) Farhan Shaheen Awan and (4) Madaris Butt along with other accused were seen in the video which was saved in the USB, hence the instant FIR was registered.
3. Learned counsel for the petitioner/accused inter alia contends that the petitioner/accused is innocent; there is no evidence available against him; he is not nominated in the FIR; not involved in any other criminal case; investigation in the case has been completed; courts should not decide the cases on the basis of reports/hype created on social media, rather decide the cases on the basis of evidence available on record, and has prayed for grant of bail after arrest.
4. On the other hand, learned State Counsel assisted by learned counsel for the victims controverted the arguments advanced by learned counsel for the petitioner and has stated that the petitioner/accused has committed a heinous crime; he has been identified by both male and female victims of the incident during the identification parade, conducted in Central Jail Adyala, Rawalpindi; sufficient evidence is available against him; police has recovered a sum of Rs.
1,00,000/- upon his pointation and has prayed for dismissal of bail after arrest.
5. Arguments advanced by learned Counsel for the petitioner, learned State Counsel on behalf of State and learned counsel for the victims have been heard and record has been perused with their able assistance.
6. After registration of the case, police has traced the male and female victims seen in the video.
Their names are Asad Raza and Mst. Sundas Tahir. Police recorded their statements under section 161, Cr.P.C on 08.07.2021.
7. Victim, Mst. Sundas Tahir in her statement has stated that she came from Lahore to Islamabad on 18.11.2020, to give an interview in a private company, the male victim namely Asad Raza/PW made an arrangements for her stay in a flat and also received her from Faizabad Bus Stop, Islamabad at about 09:00 p.m. Both of them reached at the flat at about 10:30 p.m. In the meanwhile, Muhammad Usman Ibrar along with Adaris Butt and other co-accused entered in the flat and started' beating both of them, made their videos, removed their cloths and forced her to commit Zina/rape with other victim Asad Raza. Muhammad Usman Ibrar and Adaris Butt/accused also touched her sensitive body parts and forced her to dance in front of them. Ali/accused was also touched her private body parts, all of them were making videos and laughing on them while issuing threats of life, forced them to drink whisky and confined them in a room for about two and a half hours. Thereafter, one person namely Atta-ur-Rehman came and took Muhammad Usman Ibrar and his other companions/co-accused along with him and due to fear and psychological pressure, she did not inform anyone else regarding the said incident, subsequently Asad Raza/victim told her that Muhammad Usman Ibrar was demanding money and he has paid total amount of Rs. 11,25,000/- to him, an amount of Rs. 4,00,000/- was paid by her to Asad Raza/victim, further stated that she can identify the persons nominated in the FIR as well as other persons present in the room.
8. Almost the same facts have been narrated by Asad Raza/victim in his statement recorded, under section 161, Cr.P.C. on 08.07.2021.
9. Police has also got recorded statements of both the victims under section 164, Cr.P.C. on 10.07.2021 before the Assistant Commissioner/ Sub-Divisional Magistrate, Islamabad.
10. The petitioner is neither named in the FIR nor in the statements of the victims recorded under sections 161 and 164, Cr.P.C, first time name of the petitioner was disclosed on 07.07.2021 by the co- accused namely Farhan Shaheen Awan. Police arrested the petitioner/accused on 09.07.2021 and sent him to Central Jail Adayala, Rawalpindi for conducting an identification parade. On 16.07.2021, both the victims identified the petitioner, wherein they have stated that the petitioner was present at the main door, and was opening and closing the door of the flat.
11. After registration of case, the police has added sections 395, 384, 375-A, 377-B, 114, 412, 148 and 149, P.P.C. Definitions of all the sections levelled in the FIR are as under; SR#SECTION SUBJECT 01.354-A, P.P.C.Assault or use of criminal force to women or striping her clothes.
02.506-ii, P.P.C.Punishment for criminal intimidation.
03.342, P.P.C.Punishment for wrongful confinement.
04.509, P.P.C.Words, gesture or act intended to insult the modesty of women.
05.395, P.P.C.Punishment for dacoity.
06.384, P.P.C.Punishment for extortion.
07.375-A, P.P.C.Gang rape.
08.377-B, P.P.C.Punishment of sexual abuse.
09.114, P.P.C. Punishment of abettor.
10.412, P.P.C.Dishonestly receiving property stolen in the commission of a dacoity.
11.148, P.P.C.Rioting, armed with deadly weapon.
12.149, P.P.C.Common object.
12. The police has got forensic analysis of the audio and video recordings from the Punjab Forensic Science Agency, Lahore. According to report dated 23.07.2021, the accused namely Muhammad Usman Ibrar, (ii) Hafiz Atta-ur-Rehman and (iii) Muhammad Adaris Qayyum Butt were seen in the videos.
13. Police has also mentioned in the report that seven accused were seen in the videos, whereas according to police opinion/report the present petitioner was not seen in the said video recordings.
Even the voice of the petitioner was not found during the audio analysis of the said videos. All the accused involved in the occurrence can be seen in the videos.
14. Police has recovered a sum of Rs. 1,00,000/- upon pointation of the petitioner/accused on 25.07.2021 from his house at Sector 1-10/4, Islamabad.
15. In the statements of both the victims recorded under section 161, Cr.P.C. before the police as well as under section 164, Cr.P.C before the Sub-Divisional Magistrate, Islamabad, petitioner/accused is not named, there is no allegation levelled against the petitioner regarding making videos, striping of clothes, gang rape, dacoity, extortion, taking money, sexual abuse of the victims etc. The only allegation levelled against the petitioner in the identification parade dated 16.07.2021 is that he was present at the door of the bedroom and was opening and closing the door.
16. The alleged occurrence took place on 18.11.2020, admittedly the matter has not been reported to the police by victims. According to law everyone is bound to report the commission of cognizable offence to the police immediately, so that the FIR should be registered and accused should be punished. Argument that the victims have not informed the police due to fear and psychological pressure is not convincing, as the offences of heinous crimes like rape, sodomy, gang rape, etc. are always reported to the police by the victims, even in the cases where the victims are minor girls and boys, the cases have been reported, FIRs have been registered, trials have been conducted and accused have been awarded exemplary punishments from the Courts of law.
17. Age of victim Mst. Sundas Tahir is 28 years, whereas age of Asad Raza as per police record is 27 years, both of them are very well mature and educated persons, they should have reported the matter to police being responsible citizens at the time of occurrence, so that the accused involved in the heinous crime would have been arrested, sufficient incriminating evidence from the place of occurrence should have been collected and punishment should have been awarded to them.
There is no important evidence of Medico-Legal, Chemical Examiner or DNA reports etc. is available on record.
18. First Information Report has been registered on 06.07.2021 i.e. after the delay of more than 07 months of the occurrence and too on the complaint of Syed Asim Ghaffar, S.I./SHO Golra, Islamabad.
19. Reliance is also placed on the following case laws, wherein, bail after arrest of accused of allegedly committing rape has been granted by the Hon'ble Supreme Court of Pakistan and the Hon'ble High Courts of different provinces, on the ground of delay in lodging the FIR. i. "Muhammad Tanvir v. The State and others" (2017 SCMR 366). ii. "Haibat Khan v. The State and others" (2016 SCMR 2176). iii. "Zahid v. The State and another" (2018 YLR Note 220 [Lahore]). iv. "Hassan Ali Shah v. The State and another" (2017 PCr.LJ Note 85 [Lahore]). v. "Fayya z v. The State" (2017 PCr.LJ Note 199 [Sindh]).
20. As the petitioner has been arrested on the basis of statement of co-accused namely Farhan Shaheen Awan. The statement of the co-accused before police is inadmissible under Article 38 of Qanun-e-Shahadat Order, 1984, the same has got no evidentiary value and inadmissible in the evidence. It is held by the Hon'ble Supreme Court of Pakistan while granting the bail after arrest in a case titled as "Raja Muhammad Younas v. State" (2013 SCMR 669), that: "We have noted that the only material implicating the petitioner is the statement of co-accused, Amjad Mahmood, Constable. Under Article 38 of Qanun-e-Shahadat Order, 1984, admission of an accused before police cannot be used as evidence against the co-accused". Reliance is also placed on cases titled as "Faqir Ullah v. Khalil-uz-Zaman" (1999 SCMR 2203), "Zafar Iqbal v. State" (2016 YLR 1891) and "Umeed v. The State" (2013 YLR 1689).
21. As far as the principle of vicarious liability is concerned, it has been held by the Hon'ble Supreme Court of Pakistan in a case titled as "Manzoor Hussain and another v. State" (2011 SCMR 902), that: "Bail cannot be refused on the basis of vicarious liability, unless it is shown through positive evidence that indeed accused had played a role in the crime in question".
22. It has been held by the Hon'ble Supreme Court of Pakistan in a case titled as "Ramachandran v.
State of Kerala" (2012 SCMR 1156), that: "Once it was established that the unlawful assembly had common object, it was not necessary that all persons forming the unlawful assembly must be shown to have committed some overt act. For the purpose incurring the vicarious liability under the provision, the liability of other members of the unlawful assembly for the offence committed during the continuance of the occurrence, rested upon the fact whether the other members knew before hand that the offence actually committed was likely to be committed in prosecution of the common object."
23. It is trite that the questions of sharing common intention and vicarious liability of the accused shall be determined by learned trial Court after recording of evidence. Reliance is placed upon cases reported as "2018 YLR 920, 2005 PCr.LJ 794 and 2018 PCr.LJ 928".
24. It has been held by the Hon'ble Supreme Court of Pakistan in a case titled as "Zaigham Ashraf v. The State and others (2016 SCMR 18)", that: "To curtail the liberty of a person is a serious step in law, therefore, the Judges shall apply judicial mind with deep thought for reaching at a fair and proper conclusion albeit tentatively however, this exercise shall not to be carried out in vacuum or in a flimsy or causal manner as that will defeat the ends of justice because if the accused charge, is ultimately acquitted at the trial then no reparation or compensation can be awarded to him for the long incarceration, as the provisions of Criminal Procedure Code and the scheme of law on the subject do not provide for such arrangements to repair the loss, caused to an accused person, detaining him in jail without just cause and reasonable ground."
25. It is important to remember that bail is not to be withheld as a punishment. There is no legal or moral compulsion to keep the people in jail merely on the allegation that they have committed offences punishable with death or transportation, unless reasonable grounds exist to disclose their complicity. The ultimate conviction and incarceration of a guilty person can repair the wrong caused by a mistaken relief of bail after arrest 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. Reliance is placed on a case titled as "Manzoor and 4 others v. The State"
26. It is held by the Hon'ble Supreme Court of Pakistan in a case titled as "Haji Muhammad Nazir and others v. The State" (2008 SCMR 807), that: "It may also be noted that grant of bail does not mean acquittal of accused but only change of custody from Government agencies to the sureties, who on furnishing bonds take responsibility to produce the accused whenever and wherever he/they is/are required to be produced".
27. Courts do not decide the matters/cases on the basis of views, comments, opinions and hype created regarding the matters on social media, print media and electronic media, rather the cases are always decided on the basis of evidence/material available/collected according to the relevant provisions of Qanun-e-Shahadat Order, 1984 and Code of Criminal Procedure, 1898. As due to the hype created in the instant matter on media, police has conducted high profile investigation supervised and monitored by senior officers, it is expected that in all criminal cases the police will conduct the investigation in the same manner diligently and efficiently, by using their all skills, in a fair and transparent manner.
28. The petitioner is a student of Doctor of Physical Therapy (DPT Program) at Department of Rehabilitation Sciences, Shifa Medical College, H-8/4, Islamabad, investigation in the case has been completed, the petitioner/accused is previously non-convict, no more required by the police for further investigation, he is behind the bars without progress in the trial. Fair and speedy trial is one of the fundamental rights of the petitioner; no moral and legal compulsion exists to keep him behind the bars for an indefinite period which amounts to punishment without trial.
29. A tentative assessm ent of record shows that present petitioner has made out a case of further inquiry as envisaged under section 497(2), Cr.P.C.
30. In view of above, instant petition is accepted and the petitioner is admitted to bail subject to furnishing bail bonds in the sum of Rs. 10,000,00/- (Rupees Ten Hundred Thousand) with two sureties in the like amount to the satisfaction of learned trial Court.
31. Needless to mention that, this is a tentative assessment which shall not affect the trial of case in any manner.