' CHAUDHARY MUHAMMAD TAJ, J.---This appeal has been filed to assail the judgment passed by the Shariat Court on 14-11-2003 whereby a revision petition filed against the order of the District Court of Criminal Jurisdiction, Rawalakot was dismissed.
2. The facts are that a case under sections 292, 342, 377 and 34, A.P.C. Read with section 12 of the Offence of Zina (Enforcement of Hudood) Act, 1985, was registered against the appellants and other accused person (not before the Court) which stood challaned before the District Court of Criminal Jurisdiction, Rawalakot. The appellants alongwith other' accused person moved for their bail through an application which was rejected. A revision petition filed against the aforesaid order before the Shariat Court of Azad Jammu and Kashmir was also dismissed. Hence, this appeal on behalf of the appellants.
3. Sardar Mushtaq Hussain Khan, the learned counsel representing the appellants, raised following points in support of the appeal:--
(i) That there is no prima facie case against the accused-appellants. The First Information Report was lodged after a considerable delay of more than two months which shows that the case is doubtful as such the accused-appellants are entitled to the concession of bail;
(ii) that the prosecution version was not supported by any evidence except bare statement of the complainant;
(iii) that the medical evidence contradicts the complainant's version as according to the doctor's report no offence was committed. The case is of further probe;
(iv) that the proposed evidence of recovery of photographs is inadmissible which cannot be relied upon for any purpose. It was explained that the photographs placed on record are of no legal validity;
(v) that the accused Majid Hanif is entitled to bail on the medical ground as he is suffering from a serious ailment and he cannot be treated properly in the judicial lock-up; and
(vi) that both the Courts below illegally declined bail to the appellants. The learned counsel referred to the following authorities in support of his assertions:--
(1) 1990 CLC 313.
(2) 1988 CLC 158.
(3) 1992 SCM R 2182.
(4) 2004 PCr.LJ 371.
(5) 1984 PCr.LJ 1818.
4. Raja Ibrar Hussain the learned Advocate-General, representing the State, and Sardar Matiammad Suleman Khan, Advocate for the complainant, while controverting the arguments addressed on behalf of the appellants, argued in the following manner:--
(i) That a strong prima facie case exists against the accused-appellants. The police after investigation has challaned the same before the competent Court of jurisdiction which also took the cognizance and the case is fixed for prosecution evidence;
(ii) that the accused-appellants are facing trial in a very heinous offence where public policy is also involved apart from the fact that prohibitory clause of subsection (I) of section 497, Cr.P.C. Is also attracted;
(iii) that delay in lodging the First Information Report by the complainant for the reasons disclosed therein, was sufficiently explained;
(iv) that the prosecution case is supported by the evidence which included the oral as well as the documentary aiid the other incriminating material; and
(v) that both the Courts below, after taking into consideration the factual as well as legal aspects of the case, disallowed the concession of bail to the appellants, therefore, the appellants have failed to raise any legal' ground for their release on bail. The learned counsel referred to the following authorities in support of their assertions:-- ' 1993 PCr.LJ 1401. 2004 PCr.LJ 58. 2004 PCr.LJ 167. 1992 SCR 1.
5. We have heard the learned counsel for the parties and also gone through the record. The First Information Report was lodged by complainant Zahid Siddique on 5-8-2002 at 10-00 p.m. At Police Station Datot, District Poonch. It was alleged that on 31-5-2002 he was present in his house when appellant Majid Hanif came to his house and stated that there is a cricket match in Datot. The complainant alongwith Majid Hand proceeded towards that place when he was told to take along Ibrar whose house falls in the way. It was further alleged that they went in his house who took them in his drawing room. As soon as complainant entered the room another person whose name was later on discovered as Adbul Hameed accused, also entered the room and while taking out a 'Churri' from his Dub bolted the door of the room. Majid Hanif was also armed with .30 bore pistol.
' All the accused committed sodomy with him with the threat of pistol and 'Churri' one after the other and also took his naked photographs. They also told him that they have committed the sodomy on the order of Shahbaz. It was further disclosed that after committing sodomy with him they threatened him that if he tried to disclose it to anybody else they will distribute his naked photographs to other boys. Thereafter the accused tried to blackmail him and demanded rupees fifty thousand in return of naked photographs. The complainant was compelled to disclose the incident to his elder brother Shahid Siddique and maternal uncles Zareen. Mushtaq and Shafqat.
6. The police after registration of the case started investigation and collected the incriminating material which included the recoveries etc. And sent the accused to face the trial before the Court.
7. The trial Court took the cognizance and proceeded with the trial. The accused-appellants moved an application for their bpi! Which was rejected by the trial Court and also by the Shariat Court on the ground that a prima facie case exists against them on the basis of prosecution evidence collected by the police which connects the accused persons with the offence charged against them and held the accused-appellants disentitled to the concession of bail.
8. The learned counsel for the appellants laid a stress that a false and concocted case was registered against the appellants. It was contended that the First Information Report was lodged after a delay of more than two months. The complainant's version was not supported by any other evidence including the medical evidence. There is no other incriminating material which may also support the prosecution story. According to the learned counsel this caused a serious doubt on the complainant's version. It was also asserted that the investigating agency also collected certain photographs allegedly recovered from the accused but those photographs have been prepared through camera trick and are not of the accused or of the complainant.
9. So far as the point with regard to the lodging of First Information Report with delay is concerned, it was explained in the report itself that the complainant was threatened that in case he disclosed the matter to anyone the naked photographs shall be distributed among boys but later on the accused started blackmailing the complainant by demanding rupees fifty thousand which compelled the complainant to disclose to his elder brother and others mentioned in the First Information Report. The explanation furnished prima facie appears plausible. The complainant is a young boy who ordinarily will not disclose the incident which may adversely affect his social status in the society, therefore, initially not disclosing the incident in the circumstances also prima facie appears plausible. Keeping in view the aforesaid A circumstances we cannot hold that the delay in lodging First Information Report would alone be sufficient for holding that the case is false and concocted one. Mere delay in lodging First Information Report has never been considered a sole ground to arrive at the aforesaid conclusion. In such-like cases normally the effort is made to avoid disclosure of the offence. Therefore, we cannot subscribe to the arguments addressed on behalf of the appellants on this ground. Reference may be made to a case reported as Tahir-ur-Rehman v.
The State 1984 PCr.LJ 171 where the following observations were made.-- ' The grounds urged in support of the grant of bail to the petitioner by his counsel, have not impressed me much so as to persuade me to exercise my discretion in favour of granting bail to the petitioner. It is, of course, true that the report of the occurrence has been lodged with the police station after the delay of more than 12 hours but this fact itself is not sufficient to hold the prosecution story so doubtful as to entitle the petitioner to the concession of bail. There is, prima facie, reasonable explanation for this delay on the record. In another case titled Khalid and another v. State 1983 PCr.LJ 761 closer to the facts of the present case where two young ladies were subjected to rape after being dragged by the accused. This Court made following observations while resolving the proposition of delayed F.I.R. And prosecution case rested upon solitary witness:- - "7. Elaborating on the first point it was submitted that occurrence is alleged to have been taken place at about noon yet the F.I.R. Is claimed to have been lodged at about 8-00 p.m. The delay of about 7/1 hours, according to him, has not been explained which itself is sufficient to make the prosecution case doubtful. The learned Advocate-General while replying on the point argued that there was no appreciable delay which has not been sufficiently explained. We have given our serious consideration to the point and find no substance in the argument. One of the victims was hardly 13/14 years of age. Besides being in mental agony and in state of nervous wreak the girl was bleeding and unable to walk. No one but only the concerned could feel the magnitude of disgrace and humiliation to which they were put to by these appellants. First they had to wait at the place of occurrence for the arrival of their relatives as complainant Razia could not walk. After they were taken to their homes people gathered there. All these explanations are there mentioned in the F.I.R.
Police Station was also at considerable distance. No reason has even been suggested to any of P.
Ws. As to why these appellants were implicated falsely. Parents and relatives under such-like situation are caught in a dilemma, because of the stigma and disgrace which the publicity of the act would cause. Of late there has developed a tendency to lay too much importance on the point of delay. Delay no doubt in some cases causes a cloud of doubt but only where circumstances suggest that time has been used to concoct a story to rope in the innocents or where identity of the culprit is in doubt. Beyond that delay per se is never a ground for making prosecution case doubtful. We 'the mortals must have a reasonable approach and the circumstances of each case are to be kept in consideration. It will be wrong to except things happen in a mechanical fashion in such-like situation. "
' Similar view was expressed by the Federal Shariat Court of Pakistan in a case reported as Iqbal Shah v. State PLD 1981 FSC 284 in the following words:-- "10. It has also been urged on behalf of the appellant that delay of about two days in reporting the disappearance of the prosecutrix the police and a further delay thereafter caused by the police in getting the girl medically examined go unexplained and throw much doubt on the correctness of the prosecution version of the case. A delay of two or more days in reporting the occurrence of this sort to the police is not uncommon in this country. The natural wish and desire of the parents in such events as these usually are to make efforts to trace and recover the missing female without the glare of undesired publicity which such disappearance does usually entail. It is only when these efforts fail that they resort to lodging a report with the police. The delay of one or two days on the part of the police to get the girl medically examined although deplorable, is not fatal to the prosecution in the circumstances of the instant case. It cannot be said to have caused injustice to the accused."
10. The authorities referred to by the learned counsel for the appellants in support of his assertions in view of the distinct facts are not applicable to the case in hand.
11. The next contention of the learned counsel was that the prosecution has collected certain photographs but those are false and are not of the accused or of the complainant and are mechanically prepared with some trick. Both the Courts below, prima facie, held those photographs a corroboratory evidence in support of the prosecution version. We have also minutely looked into those photographs after summoning the file from trial Court and are of the view without entering into the detailed merits with regard to the admissibility or inadmissibility of the evidence which alone is the function of the trial Court, that at this stage we cannot hold the aforesaid evidence as inadmissible or otherwise when prima facie it appears that those lend support to the complainant's version particularly in respect of blackmailing.
12. It was also argued by the learned counsel that the medical evidence contrading the prosecution story. As said earlier that at this stage of the prozedings we cannot enter into the detailed merits though we are not obliged to decide the matter in vacuum and a tentative assessm ent of the evidence is necessary. However, at this stage it would not be proper to comment on the medical evidence. But prima facie it does not contradict the prosecution version particularly when examination of the victim was made nearly after more than two months.
13. We cannot overlook the important aspect of the case that both the Courts below, the District Court of Criminal Jurisdiction, Rawalakot and the Shariat Court have disallowed the concession of hail. The weight has to be given to the order of the trial Court. The Shariat Court in its detailed judgment has discussed all the factual as well as legal points. The accused-appellants are prima facie connected with the offences charged against them.
14. Before parting with the order we would also like to observe that the learned counsel representing the appellants has not seriously sought the bail on the ground of sickness of appellant Majid Hanif though he raised the point without referring any ailment of the appellant and that he cannot be treated in jail for such disease. Therefore, we do not feel any necessity to resolve the point.
15. In view of the above, the order passed by the Shariat Court does not suffer from any illegality requiring interference by this Court which has been recorded after due appreciation of law.
Therefore, the appeal is found to have no substance in it which is dismissed. The trial Court is directed to conclude the trial expeditiously. The case-law referred to by the learned counsel for the appellants with its distinct facts is not applicable to the case in hand as such is not discussed.