1986 PLP 2491 (MLD)

Farooq Bedar, A . A .‑G. assisted by , C . M . Latif for the State. On 29‑8‑1985, Mst. Azra Bibi lodged report with regard to the criminal assault on her daughter Rukhsana, aged 7 years, at Police Station Shahdara. She named two persons who ravished the girl. They were Muhammad Sarwar and Muhammad Amin. Rukhsana was present in her house on 26‑8‑1985. At 11‑30 a. m. Amin came and took her away on the pretext of giving her fruit. After a short while Rukhsana returned home, she was crying. She told her mother that Amin and Sarwar had raped her. Both the accused were arrested. Muhammad Amin applied for bail. The Additional Sessions Judge, Lahore dismissed his application twice. Amin then came to this Court. I also dismissed his application by my order, dated 10‑12‑1985. This is second time that he has come to this Court praying for bail. Bail application of Muhammad Amin came up before me for arguments on 22‑3‑1986 when the counsel argued that co‑accused Muhammad, Sarwar had been enlarged on bail, therefore, Muhammad Amin was also entitled to the same concession. After going through the F.I.R., I issued suo motu notice to Muhammad Sarwar to show cause as to why his bail be not cancelled and he be sent to judicial lock‑up. Bail application of Muhammad Amin was accordingly adjourned to be taken up with the case of Muhammad Sarwar. On 14‑4‑1986, Muhammad Sarwar appeared alongwith his counsel, Mr. Irshad Ahmad Virk, Advocate. The counsel sought adjournment, which was granted. Today, when the matter came up for hearing neither Muhammad Sarwar turned up nor his counsel. I heard learned counsel for Muhammad Amin, who laid great stress on the fact that the complainant in her statement under section 164, Cr.P.C. said that Muhammad Amin did not commit rape with Rukhsana. According to the learned counsel, this was a strong ground to enlarge the petitioner on bail. I shall first deal with the application of Muhammad Amin. He was named in the F.I.R. The allegation against him was that he raped Rukhsana. Whatever has been stated in the statement under section 164, Cr.P.C. shall have to be considered by the trial Court when the complainant is confronted with the same. There is specific allegation of rape against Muhammad Amin in the F.I.R. I, therefore, don't think that he is entitled to bail. His application is dismissed. So far as the case of Muhammad Sarwar is concerned, he too was named in the F.I.R. and the part attributed to him was that he criminally assaulted the child. The Additional Sessions Judge, while allowing bail to Muhammad Sarwar did not, at all, consider the age of the girl. He simply took into consideration that Muhammad Sarwar was a minor, aged 12/ 14 years. There is no reliable documentary evidence to substantiate this. I sent for the record of the bail application from the Court of the Additional Sessions Judge and after going through the same I noticed that an application was addressed to the Headmaster, Government High School, Shahdara by Muhammad Hamid brother of Muhammad Sarwar for issuance of a certificate about studentship and date of birth of Muhammad Sarwar. The Headmaster called for report from the Teacher concerned, who reported that Muhammad Sarwar was a student of 7th class‑and was absent since 1st of September, 1985. The Headmaster thus issued certificate that Muhammad Sarwar was a regular student of the school and was absent since the opening of the school on 1‑9‑1985. No doubt, bail is a matter of judicial discretion, but such a discretion has to be exercised properly. The Courts are duty bound to take all the relevant facts into consideration. Case of both sides must be thoroughly examined. I am constrained to observe that Additions Sessions Judge did not at all, take into consideration that the victim in this case was a child of 7 years. Therefore, I do not think that Muhammad Sarwar was entitled to be released on bail. His bail is cancelled. He shall be arrested and sent to lock‑up forthwith. The accused may, however, apply for bail after the statement of the girl has been recorded. The trial Court is directed to expedite the trial. H. A. K. Bail cancelled.