1. ' By this order I propose to dispose of Criminal Bail Application No,87 of 2001 filed on behalf of the applicants namely Dur Muhammad and Khair Muhammad in a case bearing Crime F.I.R. No,11 of 2000 registered with Police Station Imam Bux Jamali, District Larkana for offences under sections 11/16, Offence of Zina (Enforcement of Hudood) Ordinance, 1979 and sections 324, 337-A(i), 148 and 149, P.P.C. The bail plea filed on behalf of the applicants was declined by the learned trial Court vide order, dated 18-1-2001.
2. ' The prosecution story as enunciated in the F.I.R. Is that on 6-9-2000 complainant Allah Dino Kori appeared at Police Station Imam Bux Jamali and lodged F.I.R. Alleging therein that he alongwith his son, nephews Roshan and Mashooque both sons of Khuda Bux Kori and his brother Muhammad Haneef used to live in a house surrounded by a compound wall made by straws. On the eventful night, the complainant after having dinner went into bed alongwith other inmates of the house in the open courtyard where the lantern was burning. It is alleged that at about 1-30 a.m. Mid-night the complainant woke up on the commotion and the barking of dogs and identified seven persons on the light of lantern. They were (1) Gullan, (2) Jamal, (3) Haji all of the three sons of Rabban Kori,
(4) Khair Muhammad, (5) Dur Muhammad both sons of Lal Khan Kori, (6) Muhbat. (7) Sher Muhammad, (8) Anwar all of them residents of their own houses near Muhammad Khan Bhutto, Taluka Shandadkot standing there. It is alleged that Gullan was armed with pistol, (2) Haji, (3)
3. Jamal were armed with guns, (4) Anwar was carrying a rifle, (5) Khair Muhammad, (6) Dur Muhammad were armed with Lathis, (7) Muhbat, (8) Sher Muhammad were carrying hatchets. It is said that Gullan dragged Mst. Dhayani the daughter-in-law of the complainant by force and took her on which P.W. Muhammad Haneef and Gullan grappled with each other on which accused Dur Muhammad gave Lathi blows to the complainant which hit him on his head as a result whereof he fell down. In the meanwhile, the nephews of the complainant namely Roshan and Mashooque tried to separate the girl from accused Gullan on which accused Anwar fired from his rifle which hit Roshan on his left arm and thereafter accused Jamal fired from his gun which hit Mashboque on his left foot. The complainant further states that they could not follow the culprits due to fear. The motive disclosed in the F.I.R. Is to the effect that 20 years prior to this incident accused had kidnapped his mother for the purpose of forcible marriage and on the day of the incident they had come to take revenge of that episode. The complainant further states that due to night they could not approach the concerned police station but on the following morning they appeared and lodged an F.I.R. As above, alleging that the accused in their pre-concert making themselves duly armed with deadly weapons came at the house of the complainant and forcibly kidnapped Mst.
4. Dhayani the granddaughter of the complainant either for the purpose of Zina or for the purpose of entering into forcible marriage and on the resistance of the complainant party they were given injuries with an intention to kill. The investigation followed and in due course the applicants were arrested and thereafter were sent up to stand trial in the Court of Additional Sessions Judge, Shandadkot.
5. ' It has been contended by the learned counsel for the applicants that the F.I.R. Is belated by 13-1/2 hours though the distance between the place of incident and police station is 4/5 kilometres. It has further been contended by the learned counsel that as far as applicants Dur Muhammad and Khair Muhammad are concerned both were armed with Lathis. Dur Muhammad was responsible for causing Lathi blow to Muhammad Haneef whereas Khair Muhammad was not responsible for any other overt act and in this background he states that it is a fit case where the discretion of grant of bail could be exercised in favour of the applicant. Learned counsel in support of his contentions relied upon the case of Pathan and others v. The State 1993 PCr.LJ 731, Aman Ullah and another v. The State 1993 PCr.LJ 2110, Manazar Hussain Shah v. The State 1999 PCr.LJ 86 and Ghulam Mustafa alias Sathi and others v. The State 2000 PCr.LJ 2053.
6. ' Mr. Muhammad Ismail Bhutto learned counsel appearing for the State argues that the names of both the applicants besides other co-accused appeared in the F.I.R. All of them being armed with different kind of weapons entered into the house of the complainant and launched an attack on the complainant party thereby causing multiple injuries with several kind of weapons, they were armed with and caused serious damage to them and thereafter took away Mst. Dhayani the granddaughter of the complainant for the purpose of committing Zina or for entering into forcible marriage. It has further been contended by the learned State Counsel that the sections applied in the F.I.R. Are serious and punishable up to the extent of life imprisonment which goes out of the prohibition as contained in section 497(1), Cr.P.C. And on all these scores it has been argued by him that it is not a fit case where the applicants could be granted bail.
7. I have given my anxious consideration to the arguments of the respective parties and perused the record. Admittedly the names of the applicants besides co-accused appeared in the F.I.R.
8. According to the first information report both applicants alongwith co-accused came at the house of the complainant in order to kidnap Mst. Dhayani with an intention either to commit Zina or to enter into forcible marriage in order to avenge an old motive in which Mst. Izzat Khatoon was kidnapped for the purpose of Zina or forcible marriage. The offence is punishable to the extent of imprisonment for life. The contention of the learned counsel that as far as these present applicants are concerned they have been attributed no overt act inasmuch as they have not taken part in causing injuries either to the complainant or to the P.Ws., has got no force inasmuch as the offence mainly pertains to 11/16, Offence of Zina (Enforcement of Hudood) Ordinance, 1979 and for that the applicants had fully assisted co-accused in the commission of crime and hence they cannot escape constructive liability. As far the point taken by the learned counsel for the applicant regarding delay in recording F.I.R. Is concerned, it is said that the incident has taken place during dark hours of night and the complainant party being scared due to injuries and being perturbed by the involvement of the family honour could not reach the concerned police station in time which is a sufficient explanation. The kidnapee Mst. Dhayani has not yet been recovered. In this background, I am of the view that it is not a fit case where the bail could be granted to the applicants. A reference is made to a case of Muhammad Afzal and another v. The State1997 SCM R 278. In the cited case a principle was laid down that for an offence under section 16 of Zina (Enforcement of Hudood) Ordinance, 1979, which is punishable up to 7 years, the order granting bail was recalled by the High Court holding that discretion exercised by the Additional Sessions Judge was in utter disregard of the established principles governing the question of bail. The order of High Court was challenged in the Honourable Supreme Court of Pakistan which was upheld by the apex Court holding that in such cases the Court has to consider all the attending facts and circumstances before deciding to release such an accused person on bail with the result the Honourable Supreme Court did not interfere with the order passed by High Court refusing bail. The citations referred by the learned counsel for the applicants have no bearing on the facts and the circumstances of the case in hand as such the application is dismissed.
9. ' The observations made hereinabove are confined only to this bail application. They are to be considered as tentative in nature by the learned trial Judge insofar as trial of the main case is concerned. The learned trial Judge will decide the main case in accordance with law, uninfluenced by whatever is observed hereinabove.
10. ' At this stage learned counsel for applicants prays for direction that the learned trial Court be directed to expedite the trial proceedings of the case and complete the same probably within three months after receipt of this order. The request of the learned counsel appears to be reasonable. .