1985 P Cr (PLP)

Noorul Amin, Advocate for Appellant. M. Nisar Mirza, Addl. A.‑G. for the State. Date of institution: 4th March, 1985. The appeal is addressed against the order of the District Criminal Court, Mirpur, recorded on 28th February, 1985, whereby request for grant of concession of bail was turned down.

2. Bail is sought on the ground of weakness of the prosecution case like the improbability of the story and its resting on conjectures. It is emphasized that the District Criminal Court failed to, take notice of the conjectures on which prosecution version rests, as such it misconceived the actual facts and misconstrued the law on the point.

3. The incident took place on 2nd February, 1985 at about 8 p.m. in Mirpur City. It was alleged that Robins Kausar, admittedly a destitute and begger, resident of village Langarpura, District Jhelum, travelled by bus to Mirpur City where she arrived at 9/10 a.m. She was walking towards Chowk Shaheedan when a richshaw‑driver approached her and on his persuation, she boarded the rickshaw. On reaching near the destination, the rickshaw‑driver stopped the rickshaw on the call of three persons, whose names were subsequently discovered as Tariq (accused‑petitioner), Nisar and an unknown accused. The accused pulled her out of the rickshaw on which she accompanied them. She remained in the association of the accused persons throughout the day and moved from place to place in the city and ultimately they boarded a rickshaw and arrived in the house, the scene of incident, at 5/6 p.m. On arrival, two persons (among whom one of the identified accused was Mehrban) were found present in the house. She was taken inside the house and the door was closed. It was alleged that the accused persons who were 5 in number, raped her, turn by turn. She raised hue and cry which attracted the neighbours on whose call, the local police arrived at the scene and arrested Tariq, accused‑petitioner and Mehrban, red handed, while the other three persons disappeared successfully. The police received information of the incident at 7‑30 p.m. and raided the house at about 8 p.m. and the report was recorded at 8‑30 p.m.

4. The District Criminal Court was approached for grant of bail on 23rd February, 1985. The request was declined by the subordinate Court as, in its opinion, the accused was charged with a detestible heinous offence.

5. It is undeniable that in non‑bailable offences accused cannot assert to get the concession of bail as a matter of right. The discretion vested in the Court, is to be exercised in a judicial fashion, in the light of the facts of each case. In fit cases, where the prosecution fails to bring forth evidence to constitute reasonable grounds, connecting the accused with the alleged crime, or in case where the prosecution version suffers from reasonable doubt or in presence of compassionate grounds, bail is ordinarily allowed. On the other hand, where the prosecution collects enough material to constitute reasonable grounds connecting the accused with the alleged offence, Courts are always slow to accede to the request for bail. This is more so in cases of offences relating to sex. The superior Court of the State have been very reluctant in granting bail in rape cases. In the recent decision recorded in Muhammad Hanif and other's case, this Court as well as the Supreme Court of Azad Jammu and Kashmir declined bail to the accused persons, ascribed the liability of rape. However, as a rule of prudence, like all criminal cases, the question of bail is equally settled in the light of the facts and attending circumstances of each case.

6. In the instant case, it appears from the report and evidence collected by prosecution that Mst. Robins Kausar, the victim of rape, hails from village Langarpura, District Jhelum. There is nothing on the record to disclose whether she visited Mirpur on previous occasions or not, but the story, as it opens, indicates that she was a regular visitor of Mirpur and the city was not strange to her. It is also thought provoking that at the instance of the accused, she got down from Rickshaw, without any resistance and accompanied the accused with free choice. She remained in their company throughout the day and moved throughout the city, without any resistance. Apart from the fact that she appears to be a girl of easy‑virtue, her visit appears to be a business like trip. Failure to resist or to invite the attention of the way‑farers or law‑enforcing agency, goes a long way to suggest that Robins Kausar accompanied the accused with a purpose.

7. It is interesting to note that the alleged victim of the incident entered the premises at 5/6 p.m. and was subjected to rape by 5 persons but she failed throughout to object to going to the house or looking of the house from inside as well as resistance to rape. The story, as disclosed by the prosecution, is pointer to the fact that she was a consenting agent, perhaps lured by attractive amount of reward. The police report also suggests that the local police, on receiving intimation from the neighbours, raided the house and found the girl present. The Police Officer who raided the house, in his own wisdom, perhaps in good faith, felt convinced not to arrest the girl as an accomplice to the offence and rather to allow her to enjoy her liberty assigned her the role as a prosecutrix. In my estimation, prima facie, the girl was not entitled to a better position than' the other accused persons, as she appeared equally liable for the offence of 'Zina'.

8. The medical report reflects that the girl was subjected to sexual intercourse, within a period of 24 hours. This piece of evidence which, of course, is an independent evidence of the incident, by no stretch of imagination, could safely lead to the inference as to who was responsible for such intercourse nor it was enough to help the Court to hold whether a particular accused, two of them, or all, were liable for sexual intercourse.

9. It is rightly argued by the learned Additional Advocate‑Generals that the offence of 'zina' is most detestible in Muslim society and the culprits ascribed such charge, should not be dealt with leniently. We have also taken strict view even at bail stage in rape cases, but the fact remains that no hard and fast rule can be laid down for its universal application as each case has to be decided in the light of its own peculiar facts. The abovelisted facts, in well‑considered view of this Court, lead to the conclusion that in order to fix the liability, it is necessary to make further inquiry. The tendency of the incident also suggests that the implication of the accused‑petitioner is not free from doubt. This is so, as one of the accused mentioned in the F.I.R., is named as Hanif who is the elder brother of the accused. The Investigating Officer, present in the Court, admitted that Hanif, the elder brother of the accused‑petitioner, was specifically mentioned in the F.I.R., but he was found innocent and as such he was dropped even at the initial stage. This instance is sufficient, at this stage, to lend support to the aforesaid view of this Court.

10. In view of the‑ aforesaid position, the appeal is allowed. The order of the trial Court is set aside‑and the accused‑petitioner is allowed the concession of bail. He shall be released provided 'he furnishes G bail bond in the sum of RB.50,000 with two surties and his personal bond in the like amount, to the satisfaction of A.D.M. Mirpur. M.Y.H. Bail granted.