1999 PLP 2513 (YLR)

The facts leading to present application for bail are that applicant Nadeem Ahmed is facing trial in S.C. No. 12 of 1998 before learned Sessions Judge, Karachi East under section 10(3) of Offence of Zina (Enforcement of Hudood) Ordinance, 1979 which has arisen out of F.I.R. No.30 of 1996 of Police Station Korangi, Karachi East. The brief facts of the prosecution case, as disclosed in the F.I.R. lodged by Mst. Ameeran alias Bushra at Police Station Korangi on 15‑1‑1996, are that on the preceding night she was sleeping in her house when at about 12‑15 a.m. applicant duly armed with kaiashnikov entered in her house and threatened her to keep quite else she and her children will be done to death. Due to fear, she kept silent and the applicant committed Z'ina forcibly with her. Thereafter, he lay down on another cot with her daughter Ruqiya aged about ten years. He removed her clothes and put his penis in her mouth. The applicant directed the girl to suck his penis. After satisfying his lust the applicant went away issuing threats that the complainant should not disclose the incident to anyone. After usual investigation, the applicant was sent to stand trial. The applicant applied for bail before the Trial Court but it was declined by impugned order, dated 30‑4‑1998. I have heard Mr. Nasir Rizwan Khan learned counsel for the applicant and Mr. Muhammad Saleh Panhwar, learned counsel on behalf of A.‑G. for the State. The latter has vehemently opposed the grant of bail. Learned counsel for the applicant, at the very outset; contended that he pressed this bail plea on the ground of statutory delay. According to him the applicant is in custody since 15‑10‑1996. It is, therefore, argued that he is entitled to bail. The perusal of record shows, during odd hours of night duly armed with lethal weapon i.e., kalashnikov, the applicant barged into the house of a helpless lady who was living there alongwith her minor children for the sake of livelihood, which she used to earn by doing the job of packing in a garment factory. After putting the complainant in fear of death, the applicant forcibly committed, sexual intercourse not only with her but committed a beastly act with a minor girl aged about ten years by putting his penis in her mouth, in order to satisfy his inhuman, immoral and beastly sexual lust/thirst. This act of the applicant is not only against the canons of Islam but it was a barbarous act which could only be committed by a terrorise in an unhasitating manner. The applicant can be termed as a 'terrorist' and his act was that of terrorism. The doer of such an act could easily be termed as a desperate and dangerous person. Thus, the applicant is a terrorist. He is a dangerous and desperate person and his act amounts to terrorism. The applicant was also medically/clinically examined and the Medical Officer reported that he was potent and capable of performing sexual intercourse. The order of trial Court shows that the report with regard to conduct and antecedents of applicant was called from the Superintendent Jail as well as from S.H.O. concerned. The said report revealed that the applicant was facing trial in seven murder and dacoity cases. The ground of statutory delay urged on behalf of applicant is of no help to him looking towards the peculiar facts and circumstances of this case. Proviso (3) to section 497(1), Cr.P.C., is controlled by proviso (4) to section 497, Cr.P.C. While considering a bail plea on the ground of statutory delay Court has to take into consideration the act of accused and material collected by the prosecution and if a case falls within the purview of proviso (4) to section 497(1), Cr.P.C. Court can refuse the bail. For the reasons set forth R hereinabove, I do not agree with contention of the learned counsel for the applicant and I see no merit in this bail application which is I accordingly dismissed. The observations made hereinabove are of tentative nature and the trial Court will not be influenced thereby in any way at the time of final adjudication of the case and it will be free to arrive at its own independent findings after evaluating the evidence in the case at the stage of trial. Q.M.H./M.A.K./N‑102/K Bail refused