ASLAM alias ABLO Versus State
ORDER
ABDUL MOBEEN LAKHO, J.-- Applicants/accused seeks post arrest bail in Crime No. 250/2019, registered under Sections 376/ii, 506/2, 342 and 34, P.P.C. at Police Station Sujawal, District Sujawal. As the bail plea of the applicants/accused was dismissed by the learned District and Sessions Judge, Thatta, vide order dated 17.01.2020.
2. Briefly stated, the facts of the prosecution case as narrated in the FIR are that the complainant on 26.11.2019 along with her brother Mir Mohammad son of Mohammad Hassan Lothio boarded on motorcycle to meet her daughter, after meeting with her daughter Sajida were going back on motorcycle. When they reached the Bus stop Thambo Deh Mirzo Leghari at about 09:00 p.m., they noticed in the light of motorcycle that four co-villagers were standing there namely (1) Aslam alias Abli son of Angario, (2) Ameen alias Ummi son of Punhoon (3) Latif son of Mureed and (4) Aslam son of Allah Dino son of Lothio, who signaled them to stop and they stopped, out of whom, accused Latif and Aslam son of Allah Dino took out pistol from the folds and made them alight from the motorcycle, aimed weapons at brother Mir Hassan and held him hostage and accused Aslam alias Ablu son of Anghario and Ameen alias Ummi son of Punhoon Lothio stripped her off and both committed Zina with her for one hour and all of the four accused asked them that if they mentioned it to anyone, they would kill them. Thereafter, all the four accused went away and she with her brother Mir Hassan boarded on the motorcycle went home and narrated the above facts to her husband Soomar. On 27.11.2019, brother Mir Hassan and her husband Soomar took her at PS, obtained letter from Police Station Sujawal and got her examination done from Taluka Hospital Sujawal. Thereafter husband made complaints to nekmards but no faisla could be held. She went to Police Station Sujawal and lodged the FIR against the above named accused.
3. Learned counsel for the applicants/accused has contended that there are no reasonable grounds to believe that the applicants/accused have committed the offence with which they stand charged; that there is unexplained delay of about 07 days in registration of the FIR when the distance to the police station is of only 10/11 kilometers from the place of incident, which prima facie showed that the FIR was registered after due deliberation and consultations and false implication of applicants/accused; that medical evidence did not corroborate the ocular testimony. Date of incident mentioned in medical certificate 25.11.2019, while in FIR complainant alleged that incident took place on 26.11.2019, furthermore date and time of arrival mentioned in medical certificate is 25.11.2019 one day prior to alleged incident; that according to Medico legal examination of complainant/victim, conducted by the Lady Doctor, no marks of violence were present all over her body, or any sign of resistance on part of victim. Further in FIR complainant did not state that she was beaten by the accused; that the chemical examiner had submitted his report in the negative in respect of vaginal swabs and anal swabs; that ingredients of section 376(ii), P.P.C. are not attributed to the applicants/ accused nor are they established, as chemical report and final certificate are negative while remaining section are bail able except section 506/2, P.P.C. which could be determined at trial after recording evidence; that clear allegation of an attempt of Zina had been made in FIR by the complainant/victim against accused persons, that in front of her brother Meer Hassan who has seen occurrence with his own eyes is real brother of complainant/victim said part of story of the FIR seemed implausible, irrational and unbelievable because it was practically not possible for brother to stand like a silent spectator when modesty of her sister was being outraged; that as per story narrated in the FIR alleged incident took place at bus stop, Mirzo Laghari Sujawal to Jati road but question arise that during one hour, no any vehicle or any person came and saw them; that the story narrated in FIR is false, managed, fabricated and unbelievable in the eyes of law; that the investigation of the case is complete and the accused are not required by the police for further investigation, therefore, further detention of accused would not have served any useful purpose; that the basic concept of bail is that no innocent person liberty to be curtailed, until and unless proved otherwise. The presumption in law is that every applicant/accused is innocent until his guilt is proved; that in the above circumstance, the case becomes one of further inquiry as provided under section 497(2), Cr.P.C; that applicants are local person and there is no apprehension of their absconding; that the applicants are ready to furnish the solvent surety to the satisfaction of his absconding; that further grounds will be argued at the time of hearing of this bail application with the permission of the Honorable court. He lastly prays for grant of post-arrest bail to the applicant.
4. Conversely, learned A.P.G. seriously opposed this bail application on the plea that Section applied in instant case provides punishment for death or imprisonment; there are categorical allegations against the applicants who were armed with weapon (pistol) and facilitated other accused persons who committed rape with Mst. Sakina aged about 30 years, hence applicants are not entitled for bail; this Court has to examine the instant case while making tentative assessment upon prosecution case.
5. Heard arguments of learned counsel for the parties and perused the material available on record.
6. Only tentative assessment is required. I, therefore, refuse the bail of the applicant on the following grounds:-
7. That the allegation against the applicants is of Zina and to me no woman would put her and her family's honour at states by levelling allegations of such immoral offence.
8. That admittedly the incident took place on 26.11.2019 at 2100 hours and the accused are the co-villagers of the victim who she named and identified with specific roles in the FIR, she has levelled allegation of "rape" against only two accused namely Aslam alias Ablo son of Angario and Ameen alias Ami son of Punhoon Lothio, who according to her stripped her and committed zina for one hour. The other two accused namely, Latif son of Mureed and Aslam son of Allah Dino by cast Lothio were facilitating the accused in committing Zina. What strucked my mind to dismiss the bail application of the present accused was that if she was concocting a story there she would have levelled allegation against all the four. Since they had an hour to themselves but she has levelled allegation of rape against only two accused.
9. Another important grounds urged is the delay in lodging of the FIR which to me is plausibly explained the roznamcha Entry No.6 of Police Station Sujawal amply proves that on the next day of incident i.e. 27.11.2019, the incident was reported in the morning at about 1100 hours and after reporting the matter the complainant was referred for medical examination. Though delay has sufficiently been explained, but even if one goes to consider the arguments of delay in the lodging of the FIR. The delay is of no help to the respondent as it has been repeatedly held by this Court that in such like cases delay in lodging the FIR is immaterial as people naturally avoid rushing to the police because of family honour. In this regard, I am supported with the case of Nasreen Bibi v. Farrukh Shahzad and another in 2015 SCMR 825.
10. The record reveals the lady Dr. Sheela Shaikh after performing the medical examination obtained the swabs for chemical examination which were sent for chemical examination with a delay of five days which was received in the lab after 04 days i.e. sending on 02.11.2019 received on 06.11.2019. This obvious delay in the procedure of sending the swabs to the Lab and confusion in mentioning the dates in the medical record could not be explained by the prosecution.
11. However, keeping the above in mind the Hon'ble Federal Shariat Court in PLJ 1982 FSC 24 has held that vaginal swabs may not be taken as piece of evidence in case of a married woman.
12. There was no previous enmity between the parties and it is against common sense that the petitioner would have concocted a story which can ruin her life absence of an ill-will or enmity levelled against the complainant the present case falls within the purview of Section 497(2), Cr.P.C.
13. It prima facie appears that there is enough material to dismiss the bail application and that if the applicants are released on bail at this stage it is most likely that he would intimidate or influence the victim and/or the witnesses of the present case.
14. The observations made in this order shall however not affect the decision of the case at any stage of the trial or other proceedings.
15. Hence the bail is refused having no merit for consideration.
These are the reasons of my short order dated 03.03.2020.
This Criminal Bail Application stands dismissed in the same terms.
SA/A-63/Sindh Bail declined.