' Facts pertaining to this Criminal Bail Application, as transcribed in F.I.R. No, 294/89 of Police Station Ghotki, District Sukkur, recorded on 3-9-1989, at 20-30 hours, are that, on 30-8-1989, at 21-00 hours, an incident, giving rise to an offence under section 377/34, P.P.C. Read with section 12 of the Offence of Zina (Enforcement of Hudood) Ordinance, 1979, occurred in such manner that the first informant Akbar Ali son of Wall Muhammad son of Lal Bux, who used to work at and looked after the agricultural lands of his father, was asked by accused Bashir alias Mubarak son of Anwar Malik, who resides in the neighbourhood and was on friendly terms with the informant, to go along with him to his Otaq for chit-chat and thereupon accompanied such accused to the Otaq. Rafiq son of Abdul Khaliq Malik, Ghulam Sarwar father's name not known, Mehar and Abdul Sattar sons of Anwar Malik were found sitting in the Autaq. Complainant also sat there. At this stage, Bashir went inside the house and brought tea from there, which was offered to the complainant, and after taking which the latter got intoxicated, leading to ultimate unconsciousness. He could, however, in the meantime, see and hear and, thus, heard Abdul Sattar telling the co-accused that Akbar Ali had provided them with a chance/opportunity and that he should be subjected to sodomy.
Accused Bashir brought a camera and gave it to Rafiq. Bashir then turned the informant over and committed sodomy on him. Rafiq took photographs. This being done, Bashir took over the camera while Rafiq repeated the same act on Akbar Ali. This was followed by Ghulam Sarwar indulging likewise. Then the camera was put on the table and Abdul Sattar also committed sodomy but no photographs were taken of the act last mentioned. Such incident was followed by a man being brought to the scene of occurrence, who indicated that he was a doctor and administered an injection and some tablets to the complainant. On regaining consciousness, the victim found the Camera lying on the table and the accused in the gallery of the house. The informant took off with the Camera and narrated the incident to his father, who said that legal action would be taken in the morning. Ashiq Hussain and Liaquat Ali, who were present at the time of the narration, suggested that the photographs should be got developed. Wali Muhammad, father of the informant, along with his cousin Ashiq Hussain and Liaquat Ali took the Camera to Sukkur and, on return, gave out that the developed pictures would be available in three days' time and till then they kept quiet. On 1-9-1989 Ghulam Sarwar, accused, wrote a letter to the informant that the latter should return the photographs and should not keep the same on account of enmity. On 3-9-1989, Ashiq Hussain and Liaquat Ali brought the developed photographs from Sukkur, which clearly showed Ghulam Sarwar, Rafiq and Bashir committing sodomy, which offence was confirmed also from the letter of Ghulam Sarwar. As such F.I.R. Was lodged and registered, as above.
2. On 28-9-1989, I allowed ad interim protective bail to accused Abdul Sattar, which, for moving the relevant Court, was confirmed on 1-10-1989. It is stated at the Bar that, subsequently, accused Abdul Sattar has been granted bail by the Court concerned but such order has not been been placed on record.
3. Later, accused Rafiq and Bashir as well as Ghulam Sarwar applied for bail before the Court of Session at Sukkur but the learned Sessions Judge, Sukkur, declined that relief to them and dismissed Criminal Bail Applications Nos. 757 of 1989 and 763 of 1989 in that behalf. The instant bail application has been moved by applicants-accused Rafiq and Bashir.
4. Mr. Muhammad Ali Shaikh, learned counsel for the applicants, maintains that the prosecution case, solely, rests upon the bare words of the informant boy and some photographs of doubtful value as any depiction can be achieved by employing what, technicallly, are well-known as photographic/camera tricks. Learned counsel has also urged that there is a delay of no less than three days in lodging the FIR., no corroborative evidence, whatever, and that the medical evidence is absolutely, negative. Besides, it is added, there is a long-standing enmity between the Dahors and the Maliks, which has resulted in the framing of accused Bashir and his brother Abdul Sattar, the latter of whom has already been granted bail.
5. As to delay in lodging the F.I.R. Learned counsel relies on Muhammad Sh'afait Khan v. The State 1981 P Cr. L J 918 and Hasil and others v. The State 1986 P Cr. L J 720(1). It is correct that delay in lodging F.I.R. Can be fatal to the prosecution case since delay can give rise to a legitimate suspicion that the prosecution story has been tailored to project trumped up charges. Each case of delay, however, is to be examined on its own facts and if delay is explained on any reasonable hypothesis then, at least, at the stage of bail a Court of law is expected to exercise restraint in recording an adverse opinion in the context of delay. Here, delay is explained in the F.I.R. Itself and such explanation is not totally unwarranted. Due allowance even if no more than merely tentatively, is to be given to the same. Manifestly, the contestants belong to the Muffassil and cannot be assumed to be aware of the niceties of law. They can genuinely make mistakes as to matters with regard to which one may be expected to be more circumspect. While ignorance of law is no excuse, at the same time it cannot be presumed that anyone can have pretentions of knowing all the law. All that is expected from an ordinary citizen is that he should be reasonably aware of his duties and obligations and even this can be no more than common place know how which a reasonably prudent person may be expected to have.
6. Now, in this case the complainant party seems to have labored under an impression, though erroneously, that a first-hand proof in the way of due photographs was vital to bring the charges.
What is more, and that is not stated in the F.I.R., the family of the victim boy could have weighed the pros and cons of actually going through the prosecution, as that involved the honor and dignity not only of youthful boy but may be of his entire family. At this stage, therefore, it cannot be held that the delay, which in a way is explained, was fatal.
7. Regarding corroboration, learned counsel makes reference to Muhammad Aslam v. The State 1986 P Cr. L J 720, Abdul Razaq v. The State 1986 P Cr. L J 774 and Farooq Ilyas v. The State 1988 P Cr. L J 1195 in which cases bails were granted in the face of negative Chemical and Medico-legal reports and solitary word of the victim inculpating the accused. It is undoubtedly true that Medical evidence in this case is negative but that had to be so since the medical examination took place not earlier than after 7-15 p.m. On 4-9-1989. For this, no doubt, the complainant party was itself responsible, as on account of ill-advised delay, important, if not vital evidence was, in the process, lost. It is contended for the applicants that there were no marks of injury detected on the person of the victim and that since no less than four persons, allegedly, committed sodomy some such marks should have survived, even after four days. This may have been so, if the victim had not been in a state of torpor, brought about by the intoxicant said to have been administered on him and if he had occasion to resist. I have examined the photographs closely and each of the photographs shows the victim boy with eyes closed and clearly in a state of helplessness. The absence of abrasions or other marks of injury, therefore, at this stage may not be unexplainable.
8. Taking up, now the matter of possible fabrication of the photographs; such photographs have been closely examined both by the learned Sessions Judge, Sukkur, and in this Court. They do not, prima facie, appear to be in the nature of manufactured evidence directed, fraudulently, to inculpate the accused persons. These photographs could have an element of truth about them and thus corroborate the version of the victim. What such photographs depict, order of the Sessions Court is clear about, and no more need be said here than that, if true, such photographs, substantially, corroborate the complainant's version of the incident. The Quetta case of Nasir Muhammad Khan v. The State 1985 P Cr. L J 159 regarding the probative value of photographs, which apparently, saw the light of day only in the Honourable Supreme Court and which, on a plea of recall of bail order, were found to contradict the F.I.R. Version itself cannot be of much help.
Besides, it is not anything unusual for people to take photographs of those with whom they have a lurking animosity for the purpose of causing disgrace or dishonour. The alleged enmity, if any and such as it may be, could cut either way. However, not much can be said on that score at this stage.
Sessions Case No,1525 of 1975 of the Court of the 1st Additional Sessions Judge, Sukkur, is evidently, not between the same parties but between, perhaps, their caste-fellows and the complaint of the victim boy, dated 7-9-1989, addressed, to Commissioner, Sukkur is subsequent to the incident and, expressly mentioning such incident, seeks the transfer of the father of accused Bashir. Both these documents are brought for the first time on record in this Court and to my mind do not relegate the case to be of further enquiry.
9. It is, also, not inordinate that getting a chance/opportunity a victim may get away with such offending material as the photographs. The prosecution story is also supported on the basis of a purported letter from accused Ghulam Sarwar, which is even mentioned in the How far that letter supports the prosecution, it is not for me to determine at this stage, but at an interlocutory level like the present, such is a piece of corroborative evidence, which cannot be ignored.
10. Accordingly, at this stage, it is not the bare word of the alleged victim on which the prosecution is based. It is supported by photographs and by a letter, authenticity whereof has not been questioned and this together with circumstantial evidence of those to whom the boy narrated the incident is sufficient to my mind to, at this stage, support the prosecution version.
11. It may bear mention here that Mr. Junaidi, Assistant Advocate-General, Sindh, conceded for the grant of bail to accused Bashir on the basis of the referred two documents, implying enmity, but I have explained such documents and do not consider this to be case of further inquiry on that basis. The concept of further inquiry seems to be misunderstood in some quarters. A case of further inquiry is one, where, in terms of section 497(1), Cr.P.C. 'reasonable grounds' do not emerge for believing that the accused is guilty, as alleged, or, in other words, the prosecution has not been able to establish what may, roughly, be termed as a prima facie case, and is found to depend on further investigation, the unfolding of evidence or other progress in the case. The accused, thereupon, becomes entitled to bail. The rule is not as is unfortunately, at times misunderstood, vice versa. To put it plainly, where prosecution is able to come up with a reasonable or plausible case and the accused side places some material which, ultimately, may go to clear the accused of the alleged guilt, such is not and cannot be a case of further inquiry but is only one, where the accused, on unfolding of such exonerating evidence, subsequently, may get entitled to bail. If that be so, he would only be entitled to bail, as and when, that development comes about and not before. These distinctions should always be kept in view in such context.
12. Accordingly, at this stage, I see no reason to enlarge the accused on bail. The bail application is, therefore, dismissed.