MUHAMMAD ISLAM BHATTI, J.-~ This order shall dispose of Crl. Misc. No. 1589-BC/1997 and Crl. Misc.
No. 2242-BC/1997, both brought by Mst. Sajida Parveen complainant in case FIR No. 99/1996, for cancellation of bails granted to the accused in the case.
2. The facts leading to the filing of these petitions, briefly put, are that on 29.9.1996 Mst. Sajida Parveen aged 17/18 years made a statement before Ghulam Hazoor, Sub-Inspector at Police Station Tirkhani District Faisalabad on the basis of which the aforesaid FIR was recorded at about 3.00 p.m. Under sections ,10 and 11 of Offence of Zina (Enforcement of Hudood) Ordinance, 1979.
According to this FIR the complainant had gone to the fields (on 29.9.1996) at about Namaz Wela (Fajr prayer times) in order to answer the call of nature. After easing herself she was about to tie the string of her Shalwar when suddenly four persons emerged from the adjoining sugarcane field and came running towards her. They were Ashiq Ali armed with l2 bore carbine, Muhammad Afzal armed - with l2 bore gun, 1 Muhammad Khaliq armed with a pistol, and Arif Ali, who was also allegedly armed. They were all identified by the complainant, being of the same village. The complainant also described the various roles performed by them in the commission of the offence and added that all of them committed rape with her, one by one. She claimed that during this occurrence her Shalwar and shirt were also tom. The alarm raised by her attracted her real brother Muhammad Ayub and her uncles Nazir Ahmad and Bashir Ahmad who also saw the occurrence.
Muhammad Ayub allegedly recovered the carbine with four live cartridges from Ashiq Ali accused.
All the accused, however, allegedly succeeded in slipping away firing in the air.
3. The investigation in this case was initiated by Ghulam -Hazoor, Sub- Inspector but was completed by Muhammad Sarfraz, SI/SHO Police Station Tirkhani. He found all the accused guilty.
An application moved by the accused resulted in the entrustment of the case for further investigation by Muhammad Abdul Rehman, DSP/SDPO Samundri. He found Ashiq Ali, Muhammad Afzal and Arif Ali innocent and it was only Muhammad Khaliq accused who was found guilty. The main reason for arriving at this conclusion by him was that the complainant party was not willing to accept Oath or Nian given by the accused regrading their innocence. He, therefore, directed that the names of Muhammad Afzal, Ashiq Ali and Arif Ali be kept in column No. 2 of the challan. On another application to the S.S.P. Faisalabad, the investigation was entrusted to Qazi Muhammad Ayaz, DSP. He found the prosecution version correct and disagreeing with the investigation Carried out earlier concluded that all the accused were guilty.
4. Ashiq Ali, Muhammad Afzal and Arif Ali accused, however, moved an application for bail which was accepted on 18.12.1996 by the leamed Additional Sessions Judge on the ground that they had been adjudged innocent by the police. On 23.2.1997 the complainant moved an application for cancellation of their bail alleging that they had been found guilty in the subsequent investigation carried out by Qazi Muhammad Ayaz and also that they had been misusing the concession of bail but the leamed Additional Sessions Judge dismissed this application on 10.3.1997. He also granted bail to Muhammad Khaliq accused on 31.3.1997. Mst. Sajida Parveen complainant was, therefore, obliged to come to this Court on 3.4.1997 for moving an application under section 497(5) Cr)p.C.
For cancellation of to Ashiq Ali, Muhammad Afzal and Arif Ali and on 14.5.1997 for cancellation of bail allowed to Muhammad Khaliq.
5. I have today heard the leamed counsel for the parties and have also carefully considered the facts and circumstances of the case as they can be gathered from the record. I find that all the respondents were duly nominated by the complainant as her rapists. There was obviously no good reason for the complainant to have nominated' Ashiq Ali, Muhammad Afzal and Arif Ali accused falsely. A large number of people supported the prosecution version before the various Investigating Officers. The complainant and other PWs. Who were allegedly attracted to the scene of occurrence by the alarm raised by her also filed their affidavits in support of their version. It is a settled principle of law that bail can be allowed only where no ground exists for believing that accused had committed a non-bailable offence and there were sufficient grounds for "further enquiry" into their guilt. The reasoning advanced by the leamed Additional Sessions Judge in first allowing the bail to Ashiq Ali, Muhammad Afzal and Arif Ali and then refusing to cancel the bail allowed to them, is totally faulty and. Unconvincing. I fail to understand as to show the number of pages of proceedings carried out by some Investigating Officer could play a role in holding the accused innocent or guilty. Similarly, how do the findings recorded by Muhammad Abdul Rehman, D.S.P, carry more weight than the findings recorded by Qazi Muhammad Ayaz? Again the mere fact that Ashiq Ali, Muhammad Afzal and Arif Ali were found innocent by one of the Investigating Officers could not be a good reason for the learned Additional Sessions Judge to come to the conclusion that the case of Muhammad Khaliq was also of further enquiry into his guilt.
6. The argument of the learned counsel for the respondents based on the assumption that Ashiq Ali and his two other co-accused who were found innocent had nothing to do with the commission of the offence and they had gone to the spot only in order to surprise Muhammad Khaliq who had a liaison with Mst. Sajida Parveen to the knowledge of his friends and who had earlier climbed before them that they could not catch him and Mst. Sajida Parveen redhanded, though impressed Muhammad Abdul Rehman, DSP yet I find it devoid of any force. I do not find anything in law enabling the Investigating Officers to decide the fate of the criminal cases on the basis of Oath or Man. I also fail to understand as to who gave Ashiq Ali etc., the licence to go to the spot in order to give a surprise to Muhammad Khaliq. It shall be too early to make any observation which may adversely affect the merits of the case but seen from any angle the facts and circumstances of this case do not entitle the respondents to the concession of bail or to remain on bail. I cannot help observing that granting bails to the accused in cases of heinous nature so lightly will definitely add to the agony of the victims of high-handedness. The growing menace of ever increasing violence in the society is already reaching alarming heights and enabling the criminals to come out of the lock-ups so conveniently, at the initial stages, would amount to putting premium to their criminal activities.
7. I may add at this stage that of late (i.e. On .21.4.1997) an amendment has been brought about in the relevant law and sub-section (4) has been added in Section 10 .Of Offence of Zina (Enforcement of Hudood) Ordinance, 1979 which reads as under-- "(4) When Zina-bil-Jabr liable to Tazir is committed by two or more persons in furtherance of common intention of all, each of such persons shall be punished with death".
Ln the context of this change in law the leamed counsel for the petitioner has vehemently urged that the offence committed by the accused in fact amounts to gangrape. This contention cannot be brushed aside lightly.
8. For all these reasons, I accept both these applications, recall the to the respondents and direct that they should be taken into custody forthwith.
The petition is accordingly dismissed.