2010 PLP 24 (MLD)

LIAQAT ALI SHAH, J.

Through this order, I propose to decide B.C.A. No.523 of 2009 and B.C.A. No.953 of 2009 as both arise from F.I.R. No.66, dated 24-2-2009 of Police Station Karak under sections 367-B and 376, P.P.C.

2. Facts relevant for the disposal of these applications are that on 22-2-2009, Haroon-Ur-Rashid son of Noor Alam at 2230 hours reported to the police in Police Station Karak that on 21-2-2009, his sister namely Sajida Azam, student of class 8th did not return home from school after closing hours. They searched for her but could not find her. At the time of making the report, he told the police that he had come to know that Irfan Akbar son of Noor Shahid Khan has forcibly taken away his sister for the marriage. This report was recorded in the Daily Diary, dated 22-2-2009 at serial No.26.

3. On 23-2-2009 Sajida Azam reached the police station along with one Irfan, brother of her friend, and recorded her statement to the effect that on 21-2-2009, after closing hours of the school, she was on the way back to her home when accused Sufian and Ihsanullah present in a motor car, asked her that they would take her to her house in their motorcar and she boarded the car. Instead of taking her house, they took her to the Baitak of accused Rashid and there accused Sufian, Ihsanullah, Muhsin, Hassan, Rashid Mahmood son of Hamiuddllah, Rashid Rahman son of Amal Rahman and Javed committed rape with her. She further disclosed to the police that it was on that date i.e. 23-2-2009 that at Sham Vela she could escape. On 24-2-2009, her statement under section 164, Cr.P.C. was recorded and on the same day she was examined by the lady doctor who found the hymen not intact and discharge stains on the trousers. However, no mark of violence was noticed. Notices were issued to- the accused-respondents in both the applications vide this Court orders, dated 8-6-2009 and 10-7-2009 respectively.

4. Except for accused Sufian and Muhsin, the remaining accused were refused bail by the learned Senior Civil Judge, Karak. However, they were admitted to bail by the learned Sessions Judge, Karak vide order, dated 28-3-2009. Later on, accused Sufian and Muhsin were granted bail by the learned Senior Civil Judge on the ground of consistency.

5. Arguments of the learned counsel for the parties heard and record perused.

6. Learned counsel for the complainant/petitioner contended that the accused-respondents are directly charged by the victim in her statement before the police as well as before the Magistrate; that the medical report as well as the FSL report support the version of the victim; that in such like cases, report is made at the risk and cost of the family honour as well as the future of the victim; that the offence falls under the barring provision of section 497, Cr.P.C. and as such the learned Sessions Judge has extended the concession of bail to the accused-respondents in violation of the established principles for the grant of bail. The learned State Counsel supported the petitions on the same grounds.

7. The learned counsel for the accused-respondents submitted that the conduct of the victim is not above board; that while being examined by the lady doctor, no mark of violence was found on her body. It was contended that the bail granted by the Court of competent jurisdiction is not normally interfered with.

8. A perusal of the order of the learned Sessions Judge shows that bail has been granted on the grounds that the complainant, on the basis of some information had charged Irfan son of Noor Shahid on 22-2-2009 but no action was taken on this report against Irfan and the investigation is silent about him. Further that according to the statement under section 164, Cr.P.C., the victim was taken by the accused-respondents on 21-2-2009 to the Baitak of accused Rashid and in the dark of night she managed to escape. The learned Sessions Judge has observed that she managed to escape on 21-2-2009 and had gone to the house of Irfan and that she was produced for medical examination on 24-2-2009. The above stated facts led the learned Sessions Judge to the conclusion that the occurrence had not taken place in the manner in which it was depicted.

9. The record however speaks otherwise. In her statement before the police recorded on 23-2-2009, the victim has stated. "I have got a chance to go away today's evening." which suggest that it was on 23-2-2009 that she got an opportunity to escape and on the same date, according to her statement, she went to the house of her friend Ms. Nilo wherefrom accused Irfan accompanied her to the police station on her request. Similar statement has been given by her before the Magistrate.

10. The submission of the learned counsel for the accused-respondents that the conduct of the victim was not above board, cannot be dilated upon at this stage. The absence of marks of violence on her body will also be having no effect as the resistance in the given circumstances was not possible. Reliance is placed on 2008 SCMR 1602. No doubt, normally the bail granted by the Court of competent jurisdiction is not interfered with but if it is found that the same has been granted in violation of the established principles for the grant of bail and the law on the subject, then the superior Courts would not hesitate to interfere.

11. The accused-respondents are directly charged by the victim in her statement recorded at the first instance by the police on 23-2-2009 as well as in her statement under section 164, Cr.P.C. for the commission of the offence. The medical evidence as well as the FSL report support her version. Report in such like cases is made at the cost and risk of family honour and future of the victim. The case of the accused-respondents is one which falls under the barring provision of section 497, Cr.P.C. Hence the bail granted-to the accused-respondents is hereby recalled. The accused-respondents are present in Court, taken into custody and sent to judicial lock-up.

12. It may however be observed that if any fresh material favourable to the accused-respondents is brought on record, they may apply for bail afresh to the learned Sessions Judge, karak. The office is directed to transmit the record to the quarter concerned forthwith. Challan of the case should positively be submitted for trial before the Court within 15 days and the trial Court shall conclude the trial within a period of 6 months under intimation to this Court. No unnecessary adjournment is to be granted during the trial. H.B.T./182/P Appeal allowed.