1993 P Cr (PLP)

3. On this report, Muhammad Sadiq and Punoo Khan accused persons were arrested by the police whereas co-accused Fateh Muhammad is still absconding. Punoo Khan. accused after his arrest was referred to the doctor for his medical examination to ascertain the nature of the injury. Police also recovered sticks at the instance of the accused persons.

4. On May 3, 1992, the accused-appellants moved an application seeking concession of bail before the Tehsil Criminal Court Kotli which was disallowed on the same day. Thereafter, another application was moved before District Criminal Court, Kotli under section 497, Cr.P.C. which was disallowed vide judgment under appeal.

5. The learned counsel for the accused-appellants raised the following grounds in support of the appeal:-- (i) that the F.I.R. was lodged after the delay of 13 days with no plausible explanation; (ii) that investigation has already been completed and an incomplete challan has .been submitted before the trial Court; (iii) that accused appellants are in judicial lock-up and their further detention is not required for further progress of the investigation; and (iv) that the occurrence took place at night when all the inmates of the house, according to their own version, were asleep. Identification of the accused-persons, by the prosecution witnesses in torchlight was, therefore, not possible.

6. On the other hand, Choudhary Aleemuddin, the learned counsel representing the complainant and the learned Additional Advocate-General who represented the State, repudiated the aforesaid grounds and argued:-- (i) that the first information report -discloses an offence under section 458, Cr.P.C. which entails life imprisonment; (ii) that delay of 13 days in lodging the F.I.R. has been fully explained to the effect that no male member of the house was present as such the ladies could not report the matter in time to the police; and . (iii) that at the bail stage, neither the benefit Of delay in lodging the F.I.R. nor the question of vicarious liability can be taken into account.

7. I have considered the above-mentioned grounds agitated by the learned counsel for the parties and have gone through the record of the case. I have also perused the police diaries available with the record.

8. Admittedly, Ali Muhammad and Nek Muhammad the male members of the house were away in Dobai. The matter was referred to the police by one Nooi Muhammad (complainant) who is the father-in-law of Ali Muhammad. Noor Muhammad is the resident of the same village. If he could refer the matter to the police after 13 days, he could have done so earlier. So, the explanation furnished by him for delay in lodging the F.I.R. cannot prima facie, be held a plausible one. Even the possibility of false implication of any of the accused persons in the alleged crime, cannot be brushed aside from consideration. In the statement made under section 161, Cr.P.C. it has been clearly mentioned that the accused-appellants were masked faces. When Mst. Jan Bi with an iron `Toka' inflicted injury on the face of one of the accused persons, his torch fell down on the ground which was picked up by her who in its light identified Fateh Muhammad and Punoo Khan. Golden ornaments of the ladies were snatched away by Fateh Muhammad whereas Mst. Rozina was dragged by Punoo Khan, accused. The third accused, according to the P.Ws. 1 was found present at the place of occurrence with muffled face. The possibility, of mistaken identification by torch light of a person with muffled face by` prosecution witnesses, cannot be satisfactorily excluded.

9. Even otherwise, no overt act has been attributed to the accused appellant Muhammad Sadiq. In my opinion, the concession of bail has been wrongly declined to him. There are discrepancies in the statements of the P.Ws. recorded under section 161, Cr.P.C. to the extent of this accused person who is entitled to the benefit of doubt arising out of prosecution case even at bail stage. Therefore, keeping in view the overall circumstances of the case, Muhammad Sadiq accused appellant shall be released on bail provided he furnishes a bail bond in the sum of Rs.1,00,000 (Rupees one lac) with one surety in the same amount to the satisfaction of any Magistrate 1st Class at Kotli.

10. So far as Punoo Khan, accused appellant is concerned, a sped is role has been attributed to him. The prosecution version finds support from medical evidence Therefore, his prayer for grant of bail at this stage is rejected. However, he shall be at liberty to renew his application for grant of bail before the trial Court, after recording the statements of female witnesses, if so advised. The trial Court shall in that case, decide his application in accordance with law, without being influenced by this order. N.H.Q./135/Sh.C.A Order accordingly.