2002 PLP 628 (YLR)

Muhammaddin v. State 1998 SCMR 1 ref. Muhammad Sharif H. Qazi for Applicant. Mushtaque Ahmed Kourejo for the State. Date of hearing: 12th April, 2002. This order shall dispose of both the bail applications cited above which arise out of the same offence. It is the case of prosecution that applicant Gul Muhammad used to sit under the shade of the tree standing on northern side of the house of complainant Mst. Shabiran Jatoi and gaze at them; he was, therefore, forbidden from sitting there. On the night between 24th and 25th of September 2001 at 1-00 a.m. while the electric light was on accused Manzoor armed with gun applicant Ashique and co-accused Muhammad armed with hatchets, and applicant Gul Muhammad armed with dagger entered the house of complainant and at the point of the gun asked the inmates to keep quiet who remained silent due to fear of the weapons. It is alleged that Gul Muhammad forcibly took Mst. Shabiran inside the room untied the tape of her Shalwar and after removing her Shalwar forcibly committed Zina with her and then all the accused went away. On cries of complainant, P.Ws. Imdad, Latif and other villagers were attracted, who in the light of electric bulbs saw and identified the culprits. The bail plea has been advanced on the grounds that there is delay of two days in lodging the F.I.R., there is possibility of mistaken identity; and that two co-accused namely Manzoor and Muhammad have been let off by the police during the investigation. Additionally, it was urged on behalf of applicant Ashique that the role of commission of Zina has not been ascribed to him. Learned counsel for applicant Ashique relied on the case of Muhammad Ameen v. State (PLJ 2001 Cr.C (Kar.) 448) applicant Gul Muhammad was produced from Jail and was not represented by any counsel. He submitted that he has been implicated falsely due to enmity. As far the delay in lodging the F.I.R. is concerned, it has been explained in the F.I.R. itself and further considering the social set up of the society delay in lodging the F.I.R. in rape cases may be condoned on considering the circumstances of each case. The following observations of Honourable Supreme Court in Mehboob Ahmed v. State (1999 SCMR 1102) may in this context be quoted with advantage. "As to the apparent delay in lodging of the F.I.R., we cannot be unmindful of the prevailing taboos in our society. Even in modern day advanced societies, for and on account of the prevalent predilections, many a cases of rape go unreported. A victim of rape should not be penalized on account of ostensible delay in reporting what she has undergone. On the contrary, kindness, encouragement and understanding are the requirements to approbate a victim's difficult decision to purge the society of perpetrators of such heinous offences." Further, there is no question of mistaken identity as the faces of culprits were open and they were identified in the light of electric bulbs. Complainant Mst. Shabiran's version has been fully supported by the inmates of the house namely her father-in-law Essa and Mst. Jamul. The independent witnesses belonging to neighbour namely Imdad and Latif have also given evidence in support of prosecution, therefore, learned State counsel is justified in submitting that the ocular evidence at this stage cannot be discarded as it would amount to deeper appreciation of evidence. Moreover, there is direct allegation of Zina against applicant Gul Muhammad. The contention that two others have been let off shall also not pre-empt the trial as the evidentiary value of the ocular testimonies is yet to be assessed at the trial. The principles laid down in Muhammaddin v. State (1998 SCMR 1) support this view since it has been held inter alia, in the cited authority that in bail matters the Courts should avoid taking crucial decision merely on the basis of conflicting investigation reports. The question that no marks of violence were found is also meaningless as the offence has allegedly been committed on the point of gun, hatchet and dagger. The authority cited by the learned counsel is of no assistance as there was unexplained delay in recording the statement under section 161, Cr.P.C. of the prosecutrix in the cited case and the inference drawn from medical evidence was also otherwise which is not the case here. In view of the above circumstances the bail plea on behalf of both the applicants cannot be sustained. The applications are accordingly dismissed. H.B.T./A-338/K Bail application dismissed.