' Mst. Zaitoon petitioner herein, has filed this application for cancellation of bail of the accused- respondents granted to them by the M.I.C., Mansehra vide his order dated 20-8-1995 in Case F.I.R.
No, 255 dated 16-10-1995 under section 354-A/506/148/149, P.P.C., Police Station Sadder, Mansehra.
2. According to the F.I.R. On 15-7-1995 at 8-00 a.m. The complainant in the company of Mst.
Khatoon, Mst. Zaitoon and Mst. Mehr Afzoon was going to the house of Mir Zaman for offering 'Fateh Khawani' and when they reached near Katha Deh Bihali, they were intercepted by Muhammad Banaras, Abdul Waheed, Muhammad Haneef, Muhainmad Riaz and Muhammad Ejaz who started aerial firing in order to intimidate her. Muhammad Banaras and Abdul Waheed striped her of her clothes, abused and disgraced her.
3. The accused-respondents were arrested on 31-7-1995 when their ad interim pre-arrest bail was not confirmed by the learned Sessions Judge, Mansehra. They were granted bail by the learned M.I.C., Mansehra vide his order dated 20-8-1995.
4. Learned counsel for the petitioner contended that the very presence of the accused- respondents duly armed, who are real brothers of accused Banaras, on the spot indicate their pre- planning to commit the crime. They used criminal force to the complainant by aerial firing and facilitated their coaccuscd to stripe of her clothes. The version given in the F.I.R. Finds complete support from the statements of the witnesses named in the F.I.R. Therefore in view of such a strong evidence against the accused-respondents they were not entitled to bail.
5. Learned counsel for the respondents while defending the bail order contended that the formation of the unlawful assembly for the common object is yet to be proved and that the striping of has not been attributed to the respondents, therefore, the discretion exercised in favour of the accused-respondents needs no interference. He urged that since the concession of bail has not been abused or misused, therefore, on this ground too, the to the accused-respondents which was not cancelled by the learned Sessions Judge, require no intervention by this Court.
6. Learned Assistant Advocate-General appearing for the State, strongly supported the application for cancellation of bail. He argued that the lady was disgraced and striped of during the aerial firing of the accused/respondents, therefore, their active participation in the crime is fully established and they do not deserve the concession of bail in the circumstances of the case.
7. After hearing the learned counsel for the parties and going through the record of the case, I am of the opinion that the Magistrate has not judiciously exercised the discretion in allowing bail to the accused-respondents in the facts and circumstances of the case. It would be appropriate to reproduce section 354-A, P.P.C. Which reads as under:-- "354-A. Assault or use of criminal force to woman and stripping her of her clothes.--Whoever assaults or uses criminal force to any woman and stripes her of her clothes and in that condition exposes her to the public view, shall be punished with death or with imprisonment for life, and shall also be liable to fine."
The bare reading of the above-quoted section would show that it consists of two parts i,e, Firstly assault or use of criminal force to a woman and secondly striping her of her clothes and exposing her to public view. All the three witnesses named in the F.I.R. Have fully corroborated the complainant's version stating that accused-respondents used criminal 'force by firing in the air and facilitated their co-accused to stripe of the complainant of her clothes and exposed her to public view. The accused took away her clothes and the witnesses covered her with their 'Dopattas'.
The accused-respondents actively participated in the commission of the crime by using criminal force, hence they carried out first part of the offence and facilitated their co-accused to complete it by performing the second part thereof, i,e, striping of the clothes and exposing her to public view.
The offence has been committed jointly by all the accused with their respective roles in prosecution of their common object, therefore, no distinction could be drawn in their role as they all had unlawfully assembled for the achievement of their common object. The offence entails punishment of death/imprisonment for life and thus falls within the prohibitory clause and on tentative assessm ent of evidence, there are reasons to believe that the accused-respondents are guilty of the offence, hence the discretion exercised by the Magistrate in their favour does not seem to be proper. Consequently on acceptance of this application, the to the accused- respondents is recalled/cancelled. They are present in Court, are taken into custody and committed to judicial lock-up for facing trial.
Bail cancelled.