1981 P Cr (PLP)

This is an application for bail. Mst. Badre Begum made a report on 18th March, 1981, at 3. p.m. at Police Station, Kahuta, Tehsil Haveli, wherein it was alleged that she was married to Muhammad Siddique, one year prior to the incident. During the period of incident, on account of unhappy relations between the spouses, she was living with her grand father. On the night of 12th and 13th March, 1981, at about `Sehri-vela', Mst. Arba Begum, grand mother of the complainant who was also sleeping in the room, opened the door when two persons who were waiting in hide, outside the room, entered the premises, bolted the room from inside and one of the culprits sat on the bed of the complainant while the other made search of the room, on the 'pretext that Akbar and Yaqub had stolen a tape-recorder from Rawalakot and they being Police Officers, were making search for its recovery. Mst. Arba Begum told them that Akbar was still at Rawalakot. They advanced threat to younger brother of the complainant and Mst. Arba Begum. One of the culprits who was of fair complexion with moustaches and wearing black shoes, committed rape with the complainant. The other accused also raped her and thereafter both of them went out and bolted the door from outside. The incident was seen by Muhammad Saghir, aged 10 years and Mst. Arba Begum. The accused-petitioner were arrested on 31stMarch, 1981. Mr. Mumtaz Hussain Rathore, learned counsel representing the petitioner, advanced the following grounds for grant of bail:- (1) That the accused-petitioner being neighbour of the complainant and other witnesses, was quite familiar and known to them. (2) That none of the accused was named in the F. I. R. (3) That prosecution failed to collect any evidence to connect the accused with the commission of offence. He cited 1975 P Cr. L 1271, N L R 1980 Criminal (Lah). 575 and P L D 1976 Lah. 1403 Mr. Rafique Mahmood Khan, learned Addi tional Advocate-General argued that on 27th March 1981 in a supplementary statement, Mst. Badra Begum expressly stated that Muhammad Shafait, accused-petitioner committed rape with her. In presence of the statement of the witnesses, the accused was not entitled to bail on the ground of absence of his name in the F. I. R. He cited 1974 S C M R 163, to support of his contention. It is evident from the record that on completion of investigation challan was submitted in the trial Court on the 25th of April, 1981. The alleged companion of the petitioner has not been traced out. It is reported by the Investigating Officer that the second accused could not be traced out for lack of evidence. It is prosecution's version that Muhammad Shafait lives in the vicinity of the scene of occurrence. In the supplementary statement, Mst. Badra Begum claimed that Muhammad Shafait was well known to her, on account of his frequent visits in their house in one wav or the other. The Investigating Officer apprehended and challaned the accused on the basis of supplementary statement recorded on 27thMarch, 1981. Believing the statement of Mst. Badra Begum, dated 27thMarch, 1981, prosecution has to explain as to why the accused-petitioner was not named in the F. I. R. The F. I. R. patently, was made five days after the incident. There is no explanation for delay. The medical evidence also raises a big question as to whether incident took place in the manner claimed by the prosecution or not. In view of the aforesaid circumstances, the accused-petitioner is entitled to bail on two grounds:- (i) That there are sufficient grounds to hold that the case necessitates further evidence, in order to connect the accused with the commission of offence; (ii) that at this stage, the involvement of the accused-petitioner is not free from doubt. In view of the aforesaid observations, the petition is accepted. The accused-petitioner shall be released provided he furnishes bail bond in the sum of Rs. 10,000 with his personal bond in the same amount, to the satisfaction of any Magistrate 1stClass, Muzaffarabad. Bail granted.