P L D 2012 Sindh 174 (PLP)

SHAHID ANWAR BAJWA, J.

1. Granted.

2. Granted subject to all just exceptions.

3. F.I.R No.264 of 2011 was recorded at Police Station, Moro, on 16-7-2011 at 6-15 p.m. for an incident alleged to have occurred at 11-00 a.m. of the previous day. Complainant stated that Mst. Kiran aged about 15 years is his niece whose father used to reside in Saudi Arabia and the complainant looked after the house. On 15-7-2011 during morning time the complainant went out of the house in connection with work and when he returned to house his niece and sister-in-law told him that when they were available in the house at 11-00 a.m. five persons including two unknown persons (the present applicant being one of the three identified persons) all having pistols in their hands entered the house, aimed their weapons and asked the girls to remain silent. Two of the co-accused forcibly caught hold of Kiran, removed her clothes, recorded her movie and then committed zina. All this while the present applicant and the two un-identified persons stood guard while pointing their weapons. After such act they went away. Pre-arrest bail application was dismissed by the Court below for the following reasons:-- "There is substance in the submissions as made by the learned counsel appearing on behalf of the complainant that specific role has been assigned to present applicant as he along with others had entered into the house of victim Mst. Kiran where wearing cloths were removed by accused persons and accused Ghulam Murtaza alias Murtoo and Munwar Ali alias Munni had committed the zina with Mst. Kiran, who is at the age of 15 years and present applicant along with two others had controlled upon Mst.Zareena on the strength of weapons and had facilitated to remain accused persons to achieve nefarious object and it is not the ordinary crime but it is the crime against society. Medical report is in support of assertions of complainant and the alleged sections are coming within the ambit of prohibitory clause as defined in section 497(i) Cr.P.C. and it is the extraordinary relief, to which is to be extended to an innocent person, who has been involved mala fidely by the complainant or with ulterior motives due to enmity, and such ingredients are absolutely lacking in the present case and I have taken the guidance from the decision of the honourable Supreme Court as relied upon by the learned counsel appearing on behalf of the applicant and I am at the humble view that the same is not attracted to the present case because of having different facts and circumstances, hence 1 do not see any substance to appreciate the material as produced by the learned counsel appearing on behalf of the applicant at this stage, where tentatively assessment is required, hence the bail application is being dismissed and the interim relief so extended to him on 20-8-2011 is hereby recalled. The charge sheet has been submitted by the I.O. and the cognizance has been taken by the learned Judicial Magistrate, and the case is pending before this Court." Learned counsel submitted that there is no allegation of zina against the applicant and therefore applicant is entitled to bail. He relied upon Hussain Bux v. State (2004 PCr.LJ 1397). I have considered the submissions made by the learned counsel and have also gone through the record. In Hussain Bux's case (supra) allegation was that four persons, two armed with guns and two with a pistol and a hatchet respectively trespassed into the house of complainant in order to commit zina-bil-jabr with daughter of the complainant. The house mates raised cries which attracted neighbours and therefore culprits fled from the scene. A Single Judge of this Court observed that F.I.R. was based on hypothesis and conjectures and no overt act had been attributed to the applicants in the F.I.R. and all that was alleged is that they simply trespassed into the house and were standing near cot of the lady. It was observed that neither they outraged modesty of the girl nor was there allegation that they tried to commit zina. The case is entirely distinguishable. In the present case in the F.I.R. it is alleged that while the two co-accused ' persons stripped the girl naked, made a movie and thereafter one after c the other committed rape upon the girl all this while the present applicant stood guard to protect the rapists. If this is not a case of vicarious liability applicable with its full force, it is difficult to visualize as to what would be any case of vicarious liability. Consequently, this bail application is dismissed. Needless to observe that if a post arrest bail application is filed by the applicant, it shall be considered by the trial court on its merits without in any way being influenced by any of the observations made above. M.W.A./S-4/K??????????? ?????????????????????????????????????????????????????????? Pre-arrest bail refused.