' The appeal and reference made by the District Criminal Court, Mirpur arise out of a common incident and orders of the District Criminal Court, Mirpur, these are, therefore, disposed of by single order.
2. Mst. Robina prosecutrix, attributed the charge of rape to the petitioners in the manner that on the night of 22nd and 23rd December, 1984, when she went out of her house for easing out, she was over-powered by the accused persons, taken to a deserted house and was subjected to rape. After some interval, she was taken from the said house to another premises known as Jail Quarters, unoccupied by anybody, where according to her, offence of rape was repeated. The names of the accused were described in the F.I.R. Submitted .To S.P., Mirpur who forwarded the same for registration of the case to the local police. Muhammad Arif and Muhammad Hanif were apprehended on 23rd December, whereas the other petitioners escaped their arrest by securing their pre-arrest bail from the District Criminal Court. In the final finding, the learned Sessions Judge and the learned District Qazi failed to agree, in consequence of which the learned Sessions Judge felt advised to allow concession of bail to the accused-petitioners except Muhammad Hanif. The learned District Qazi, contrarily, declined bail to all the accused-petitioners, in presence of attribution of heinous offence. The petitioners who were declined bail by the District Qazi, preferred an appeal against the finding. On account of difference of opinion, reference was also made.
3. The first objection pertains to delay in the F.I.R. Mr. Riaz Alam, the learned counsel for the defence, contended that in view of the distance between the place of incident and the police station, there is considerable delay in lodging the First Information Report. It is noticed that the written report was made by the prosecutrix to the S.P. Who sent the same to local police for legal action. It is not available from the record as to where and when the written report was made before the S.P. In addition to that, keeping in view the said report of the incident, it is not deemed that delay in question, in any manner, is fatal to the prosecution case, even for the purposes of settlement of question of bail.
4. The next objection is that the manner of the incident is improbable in view of the close relationship of the accused persons. It was suggested that Arif and Muhammad Azam are real brothers and Hanif and Akram are brothers-in-law as such they could not have joined to commit rape, as suggested by the prosecution. At this stage, this Court has to confine its deliberations in the light of the evidence collected by the prosecution and it is not permissible to lay down a principle on hypothetical and speculative proposition. It is well-known that the human nature is not universal. True that in some cases, the real brothers, or persons of akin relationship may not like or even conceive to commit an offence of rape in a company but at the same time, instances are there where people of bad nature would little care in molesting the modesty and chastity of a woman, to satisfy their lust. Suffice it to say that in the present case, there is no tangible evidence to entertain the suggestion of the defence. At present, the evidence collected by the prosecution, rests on the First Information Report, statement under section 161, Cr.P.C. Of the prosecutrix and medico-legal report keeping in view the peculiar circumstances under which the alleged offence was committed, it is difficult to entertain the suggestion of presence of independent evidence. The prosecutrix, in the case has to be believed or disbelieved in toto as her version cannot be divided to inculpate one or two accused persons and exculpate the others. It is correct that according to the First Information Report, all the accused persons were precisely ascribed the heinous offence of rape, whereas in statement under section 161, Cr.P.C. Hanif alone was ascribed commission of rape and other accused persons were assigned the role of standing by and guarding the incident by providing protection by their presence. The circumstances, obviously lead to an inference that even if the statement of the prosecutrix under section 161, Cr.P.C. Is, prima facie, accepted, the accused-petitioners who are not assigned the liability of offence of rape, the magnitude of their complicity is distinguishable only in degree and not in kind. An accomplice is equally liable to the consequences with the principal culprit. Here, in the case of rape, I am not persuaded to allow concession of bail to other accused persons, not ascribed actual commission of offence as, in my estimation, the accused-petitioners, prima facie, were attributed the abominable offence of rape.
The case law cited by the learned counsel for the petitioners is not considered helpful to the accused persons, in presence of distinguishable facts of those cases, relied by the defence. The dictum of this Court and the Supreme Court, recorded in Karam Hussain's case, is found more closely enforceable to the present proposition where Karam Hussain who was only charged with an offence of attempt to rape, was declined bail by this Court as well as by the Supreme Court.
5. In the present case, the prosecutrix is corroborated, prima facie by the medical report as, according to the doctor, the girl who is unmarried and 17 years old, was subjected to sexual intercourse, within a period of 24 hours from the time of her examination. The tentative appreciation of evidence produced before this Court, in no manner, helps the accused-petitioners, so as to grant bail even to those who were, according to statement under section 161, Cr.P.C. Not liable for commission of offence of rape but were only ascribed their complicity with principal culprit.
6. Mr. Tariq Hamid S.I. Incharge of the investigation is present in the Court. He has assured me that challan shall positively be submitted in the trial Court before 22nd instant. In the circumstances, though prayer is declined to the accused-petitioners, yet the accused persons shall be free to renew their petition for bail, on recording of testimony of the prosecutrix. The trial Court shall also see that the case is disposed of expeditiously, in view of the refusal of bail to the accused- petitioners.