2013 PLP 937 (YLR)

FAROOQ ALI CHANNA, J.

The applicants, through the instant bail application, have applied for bail in Crime No. 255 of 2012 Police Station Kamber under sections 342, 376(i), 511, P.P.C. lodged by complainant Nabi Bux alleging that his daughter Batool aged about 10 years left house for purchasing merchandise but did not return till evening, therefore, the complainant and P.Ws went to search her and when reached near Otaq of Ali Hassan they heard her cries, they entered in Otaq and saw cloths of his daughter torn and Shalwar removed. The complainant also saw Ali Hassan having pistol in his hand and his Shalwar removed. Irfan and Bashir were also standing there. All the accused on seeing the complainant party escaped away. His daughter narrated the story to him that at about 12-00 noon she was taken by Ali Hassan and others and brought at Otaq where Ali Hassan attempted to commit Zina with her. The complainant thereafter approached the nekmard of the accused persons but no faisla was given to him, therefore, he came at Police Station and lodged F.I.R. After submission of challan bail application was moved before the trial Court but dismissed.

2. Mr. Habibullah G. Ghouri, appearing for the applicants has contended that the case is false and fabricated, the story from its face appears to be concocted does not appeal to a prudent mind as it is impossible that a girl was detained for seven hours but no act of Zina was committed with her learned counsel has further contended that there is delay of 28 hours in lodging of F.I.R. Learned counsel has further contended that no person of the locality has been shown witness though the alleged place of incident is situated in the mid of Kamber city and people resides around the place of incident. In the circumstances the case calls for further enquiry to ascertain the truth or falseness in the allegations. Apparently the F.I.R. seems to be sort of blackmailing. Learned counsel has further contended that the applicant Irfan is minor one. In support of his contention he has produced school leaving certificate bears the date of his birth as 9-9-1997. His further contention is that no specific allegation is alleged against Irfan and Bashir. Learned counsel has further contended that it is not a case of Zina and as per prosecution story the same is an attempt to commit Zina as such section 511, P.P.C. shall apply which provides punishment to the extent of one half of the longest terms of imprisonment hence the offence does not fall under the prohibitory clause of section 497(1), Cr.P.C. Learned counsel has relied upon case of Zaher v. The State 2007 SCMR 1178, Muhammad Asif v. State 2004 YLR 378 and Muhammad Naeem and another v. The State 1999 PCr.LJ 463.

3. Conversely, learned counsel appearing for the complainant has opposed the bail application and has contended that it is not an offence against an individual but it is an offence against society which must be curbed, such type of incidents are being increased day by day damaging the morale of the society. Learned counsel has further contended that no mala fide has been alleged nor any enmity has been suggested against the complainant which may be the reason of false involvement of the applicants/accused. Case is fresh one and the I.O. has submitted the challan.

4. Learned State counsel has adopted the arguments advanced by learned counsel for the complainant. However, added that the prosecution case is supported by the witnesses so also the victim who, though, is aged about ten years old, but capable of recording her statement.

5. As per contents of F.I.R., it is specifically alleged against accused Ali Hassan that he was holding pistol and seen without wearing Shalwar. His act of taking victim baby Batool inside Otaq and thereafter removal of her Shalwar so also his Shalwar are clear pointers to intention to have illicit intercourse with the girl. Victim baby Batool in her statement under section 161, Cr.P.C. has also alleged against Ali Hassan that he attempted to commit Zina with her. No enmity has been suggested by the applicant/accused Ali Hassan which may be the reason of his false implication at the hands of complainant in such case causing stigma to the prestige/modesty, of his minor daughter. The delay in lodging of F.I.R. has been explained properly as under the tradition of our society usually the victim party used to approach the nekmard before lodging of F.I.R. Even mere delay in reporting occurrence to police in such cases is not fatal to prosecution where occurrence took place in day time and identity of accused is disclosed. The reliance is placed in a case reported as Imtiaz v. State 1978 PCr.LJ

740. The mashirs have also supported the recovery of torn cloths of victim as such prima facie the applicant/ accused Ali Hassan appears to be guilty of offence of attempt to commit Zina with a minor girl aged about 10/11 years as such does not deserve the concession of bail, the bail application of applicant Ali Hassan is dismissed.

6. So far the case against Irfan and Bashir is concerned, mere presence of these applicants at the place of occurrence is alleged. The vicarious liability cannot be visited unless some strong circumstance showing common intention exists as such application of section 34, P.P.C. will be considered after recording the evidence of prosecution witnesses. The applicant Irfan being minor aged about 15 years his case is also covered by section 10 of Juvenile Justice System Ordinance, 2000 entitling him to be released on bail.

7. For the above reasons I admit applicants/accused Irfan and Bashir on bail subject to their furnishing surety in the sum of Rs.50,000 each with P.R. bond in the like amount to the satisfaction of the trial Court. MWA/A-16/K Order accordingly.