2008 P Cr (PLP)

ALTAF HUSSAIN, J.

Briefly the facts of prosecution case as narrated in the F.I.R. are that on the night between 29/30-7-2006, the complainant Mst. Begum, wife of Dilawar Shah, was asleep in her house situated in Village Omilsat Tehsil Yasin along with her unmarried daughter Mst. Yooran aged about 18 years, her daughter-in-law, Mst. Yoor and other minor children. The husband of the complainant had gone to village Sandi to see his sister. The room was bolted and the lights were on. At about 0130 hours the accused who are neighbours of the complainant, forcibly opening the door of the room trespassed into it. They assaulted the complainant and her daughter-in-law. She sustained grievous injuries in the assault. Accused muffled their mouths with cloth, therefore they could not raise hue and cry. They tore the clothes of her daughter Yooran and made her naked. The accused Muhammad Karim and Momin Baig committed Zina-bil-Jabr with her, and the third accused Inamullah facilitated them in the commission of the offence. The complainant could not lodge the report of the occurrence soon after the occurrence due to the absence of her husband. However, immediately after the occurrence when the accused fled away from the spot, she informed her neighbour Nazir Shah son of Ibrahim Shah about the occurrence. He visited her house. On the return of her husband the complainant lodged the report with the police in police station Yasin on 30-7-2006.

2. The police arrested the accused after the registration of the case under F.T.R. No.16/06.

3. The petitioners seek leave to appeal against the Chief Court order dated 10-7-07 declining post-arrest bail.

4. We have heard the learned counsel for petitioners and learned Advocate-General and have also tentatively sifted the relevant record of the case.

5. The learned counsel for the petitioners inter alia contended that the F.I.R. has been lodged delayedly; that the petitioners are minors; that the accused are falsely involved in the case; that according to medical report no sign of violence could be observed on the private parts of the victim by the lady doctor who examined her. Therefore, they are entitled for grant of bail. In support of his contentions he cited the following rulings of various superior Courts:- (1) 1996 PCr.LJ 166, (2) 2006 PCr.LJ 1039, (3) 2006 SCMR 806, (4) 2002 PCr.LJ 1163, (5) 1989 PCr.LJ 1941, (6) 1997 PCr.LJ 1635, (7) 1998 SCMR 1528, (8) 2006 PCr.LJ 1809, (9) 2006 SCMR 1805.

6. The learned Advocate-General controverted the above submissions tooth and nail.

7. A few hours delay of lodging F.I.R. has been explained. Besides the victim, the complainant and her daughter-in-law who are the eye-witnesses of the occurrence have specifically charged the petitioners committing Zina-bil-Jabr with the victim and their third accused Inamullah, not petitioner facilitating them in the commission of the offence. There was no previous enmity or grudge between the parties to make false allegations which would stigmatize the honour of the whole family.

8. The medical report regarding the absence of any sign of violence on the private parts of victim is a matter requiring deeper scrutiny, which is not advisable for grant or refusal of bail, only tentative assessment can be made.

9. For the purposes of grant of bail in heinous offences minority may be one of the considerations but not the sole consideration, furthermore each case has to be examined in the light of its own facts. Under the proviso to subsection (7) of section 10 of Juvenile Justice System Ordinance bail could be denied to a child of the age of 15 years or above is arrested and such child is involved in an offence which is serious, heinous, gruesome, brutal, sensational in character or shocking to public morality or he is a previous convict of an offence punishable with death or imprisonment for life.

10. The age of the petitioners is yet to be determined by the trial Court. The offences with which the petitioners are charged are serious, heinous, and shocking to public morality. Hence they do not deserve the concession of post-arrest bail.

11. The case-law submitted by the learned counsel for petitioners is not applicable to the facts and circumstances of this case. Each criminal case has to be decided on its merits.

12. These are the reasons for our short order passed on 26-9-2007. Petition dismissed. H.B.T./41/Glt?????????????????????????????????????????????????????????????????????????????????????????????????? Bail refused.