1. ' Applicants Syed Rashid Hussain and Syed Hameed Hussain are brothers and they are facing trial in the Court of Sessions Judge, Sukkur, in a case registered through F.I.R. No,22 of 1998 of Police Station Rohri, on 9-2-1998.
2. ' The report was lodged on the application moved by Mst. Shahnaz daughter of Muhammad Rafiq Ali Khan Pathan, and the facts of the case disclosed in the F.I.R. Are to the effect that Mst. Shahnaz lived with her four sisters and six brothers in Syed Mohallah, Takkar, Rohri, District Sukkur, and had visiting connections with the family members of Syed Habib Shah who lived with his sons and other family members in their neighbourhood.
3. ' On 12-1-1998 Habib Shah's daughter-in-law Imrana wife of Saeed Hussain Shah, came to the house of Mst. Shahnaz and invited Shahnaz and her sisters on Iftar party that day. Mst. Shahnaz along with her other two unmarried sisters Atia and Erum went to the house of Syed Habib Shah. On the door Hameed Hussain was present who opened the door and let the three sisters in. He subsequently closed the door from inside. It was 5-30 p.m., Mst. Shahnaz and her sisters noted that there was no arrangement in respect of Iftar party in their house while four brothers namely Syed Rashid Hussain, Syed Hameed Hussain, Syed Saeed Hussain and Syed Waheed Hussain, were present and had revolvers with them. Imrana wife of Saeed Hussain was also present. They all started beating the three girls. Two unidentified persons with their faces muffled also reached, carrying revolvers. They disclosed that these girls had to be killed, their bodies to be put in gunny bags and to be taken in the car to be thrown away. They threatened the girls to be quiet. The girls were blind folded, their hands were tied, their photographs were taken and even movie film was taken. Mst. Atia and Erum were made to sleep in the beds and were covered with quilts. Mst.
4. Shahnaz was taken in another room where Saeed Hussain forced her to lie down in a bed by pointing revolver at her. His wife Mst. Imrana was also present. Mst. Shahnaz managed to inquire from Saeed and Imrana as to why they were doing all this to them, on which Saeed replied that since Muhammad Atiq, the brother of Mst. Shahnaz had married with Mst. Shahida, the sister of the accused persons, against their wishes through Court, they wanted divorce to her. Thereafter, it is alleged that Saeed after removing the blind fold from the eyes of Shahnaz, untied her hands and thereafter, stripped her. Saeed committed rape with Mst. Shahnaz who raised cries but none was attracted to them. She could hear voices of ladies from the other part of the house. Thereafter, she was taken to the other room where other sisters were present. She noticed that her sisters were also naked. They took photographs of the sisters also and made video movies of the girls while they were naked. They also threatened the)n not to disclose the incident to anybody, otherwise their lives will be Made so miserable, that they shall not be able to live peacefully, and that their brothers will also face the consequences. They were forced to make themselves presentable by combing their heir etc. They were thereafter allowed to go. Mst. Shahnaz inquired from Erum and Atia their state of misery, but they stated that they were not raped. The girls then finally disclosed the story to their mother and brothers, who moved an application to the Higher Authorities including an application to S.S.P., Sukkur, which application was forwarded to the police station and finally their F.I.R. Was recorded as above.
5. ' The applicants, Syed Rasheed Hussain and Syed Hameed Hussain were arrested while their brother Syed Saeed Hussain obtained interim pre-arrest bail and he is still continuing on such bail.
6. The challan was produced before the Court in which the fourth accused Syed Waheed Hussain was shown as an absconder.
7. ' The prayer of the applicants for grant of bail was rejected by the Sessions Judge, Sukkur, on 7-3- 1998 and on 4-9-1998 the applicants approached this Court with this application, which came to be heard at the principal seat as a co-accused i,e, Saeed Hussain was granted interim pre-arrest bail by a Bench at Sukkur, which was now available at Karachi.
8. ' The learned counsel for the applicants mainly relied on the medical evidence in this case which is to the effect that when Mst. Shahnaz was examined by a Woman Medical Officer at Civil Hospital, Rohri on 11-2-1998, the medical report had opined that her hymen showed old rupture which could pass two fingers with ease, and there was no sign of fresh act of sexual intercourse with her. The swa bs taken for chemical examination were also found not to be stained with semen. On the basis of such arguments, the learned counsel for the applicants contended that this was totally a false and concocted case on account of enmity between the parties, as Muhammad Atiq, the brother of the alleged victim had contracted a Court marriage with Mst. Shahida, the sister of the accused persons, and therefore, it was urged that applicants be granted bail.
9. ' The learned counsel for the complainant as well as learned Assistant Advocate-General, contended that the applicants were not entitled to grant of bail under the principles laid down by the superior Courts as, even if the medical evidence did not support the commission of Zina, the case of the prosecution was supported by the evidence of the victims who would not in ordinary course disgrace themselves, and mine their future, by levelling such allegations which primarily damage and harm them more than the accused party.
10. No doubt, the medical evidence in the present case is lacking but apparently the victim was examined after a period of about one month and it is not expected for the Chemical Analyser to find presence of semen on the swa bs taken after a period of one month. Besides, it is logical that rupture of hymen seen after a period of one month could be described as "old rupture". At this stage neither deep scrutiny of the evidence could be undertaken to judge the same to be true or false, nor the assessm ent of the same to consider it as worthy of reliance for conviction, could be adverted to. The evidence as it appears in the police papers, comprises of statements of three unmarried girls supported by circumstance of motive. The fact of marriage of Mst. Shahida with Muhammad Atiq, through Court against the wishes of the parents, was not denied by the learned counsel for the applicants but he on the contrary stated that after such Court marriage Mst.
11. Shahida had obtained divorce through Court, during the pendency of this case. Therefore, the presence of motive, prima facie, is not being denied. Therefore, considering that there was occular evidence of commission of rape supported by motive, prima facie the applicants are to be held liable for the offence of Zina, and the case, therefore, falls within the prohibitory clause of section 497(1), Cr.P.C.
12. ' The second argument of the learned counsel for the applicants was that the case at the most fell under section 354, P.P.C. Which did not fell under the prohibitory clause, is also not cogent, as already discussed. Prima facie evidence of Zina and disrespecting the girls in presence of many males may fall under section 354-A, P.P.C. Which offence is also covered by prohibitory clause to section 497(1), Cr.P.C.
13. ' Learned counsel for the applicants relied on the case of Haq Nawaz alias Hakim v. The State reported in 1998 M LD p:589, and the case of George Masih and 5 others v. The State 1987 PCr.LJ 2505. The contention was that in the reported cases the bail was allowed on account of delay in lodging of the report and that in the present case there was delay of nearly one month in lodging of report, therefore, on the same principle the applicants were entitled to grant of bail.
14. In criminal cases, every case has different and distinct circumstances and in no way the circumstances of the reported cases can be taken for the consideration of the present case to be similar. Besides, the explanation for lodging the report at a belated stage, in the present case, is available in the F.I.R. Itself as it is stated that the applications were moved to the higher authorities of police department and finally when the application came to the police station the F.I.R. Was registered under the directions of the S.S.P. Besides, hesitation to get the matter of such disgrace of girls brought to the notice of police is natural in our society. At the stage of bail this explanation is prima facie sufficient for acceptance of the version of the complainant side. Even otherwise delay in lodging of report alone, must not belie every prosecution case.
15. ' Under all the abovementioned circumstances, I do not find that the applicants are entitled to the grant of bail. Consequently, the application is rejected.