1980 P Cr (PLP)

This revision petition is directed against the judgment and order of the District Criminal Court, Mirpur, dated 29th July, 1979, whereby the bail of the petitioner‑accused was rejected. Mohammad Akbar and Sardar Ali petitioners were arrested by the Police of Mirpur Police Station on the night of 8th July, 1979 at about 1I p. .m. According to the prosecution, Mst. Anwar Begum wife of Nazir, resident of Chapar Kashmirian, Police Station Dudyal, was going back from Jatlan to Dudyal. She could not get Launch on account of which she came back to Mirpur city, hired a room in a hotel situate in Commer cial area of Mirpur city with the help of one ‑Haji .Mohammad Yousaf of Chatro. She was sleeping in her room alongwith her three children when Mohammad Akbar and Sardar Ali accused who were also staying in the Hotel, entered the room with the intention to commit rape. Mohammad Akbar with the help of Sardar Ali, overpowered Mst. Anwar Begum and committed rape with her. Sardar Ali, on his turn, was about to commit rape when Mohammad Salim, a bearer of the Hotel, attracted by the hue and cry of the victim arrived on the spot and intervened. He was also threatened by the accused persons but in the meantime, Fazal Karim and others also reached. The accused persons, on the arrival of the PWs, immediately left the place of occurrence and went to their own room. The occurrence took place at 10‑15 p. m. and F.I.R. was lodged at 10‑30 p. m. by Mst. Anwar Begum. Noor Mohammad A. S. 1. aloagwith Mohammad Abdullah A.S.I. and two Constables reached at the place of occurrence and apprehended the accused persons. Semen stained shalwars of Muhammad Akbar and Mst. Anwar Begum and bed‑sheet were recovered and sent to the Chemical Examiner. Mst. Anwar Begum and the accused persons were also medically examined. Ch. Ali Mohammad, the learned counsel appearing for Mohammad Akbar accused‑petitioner, argued that the prosecution case was suffering from doubt as Mst. Anwar Begum made an application alongwith the affidavit in the lower Court stating therein that it were not the accused persons who committed rape with her and rather the persons who commit ted the offence were unknown and she could identify them on their produc tion. Ch. Mohammad Sharif Tariq, learned counsel for Sardar Ali accused petitioner argued .that in view of the facts of the case, there was no evidence to substantiate the charge of Zina against the accused‑petitioners, hence, it was a good case for the grant of bail. He relied on Muhammad Sardar Khan v..The State (1977 P Cr. L J 503) and Abbas Ali v. The State (1976 S C M R 157) in support of his contention. In order to deal with the points raised by the learned counsel for the petitioners, it would be appropriate to mention that on the enforcement of Islamic laws on 20th February, 1979, vide Ordinance No. XXX of 1979, law relating to the offence of Zina was also enforced in Azad Jammu & Kashmir. This Ordinance is called the Offence of Zina (Enforcement of Hudood) Ordinance, 1979. . The case against the accused‑petitioners is registered under sections 5, 6, 8 and 10 of this Ordinance as well as under section 376, Penal Code. Sections 5 and 6 define Zina liable to Hadd and Zina‑bil‑jibr. Section 7 provides punishment for Zina and Zina‑bil‑jibr. Section 8 deals with proof of Zina or Zina‑bil‑jibr, liable to Hadd. Section 10 deals with the cases of punishment other than Hadd. In the present case, the allegation, as stated earlier, is that Mst. Anwar Begum who is the mother of eight children, was accompanied by her two minor daughters and one son. On account of bad weather, she could not travel to Dudyal by Launch and as such, was forced by the circumstances to take shelter in a hotel. Haji Mohammad Yousuf who happened to be a resident of Chatro, appears to be a notable and noble man who helped the lady by hiring a room for her and paying for the same. Mst. Anwar Begum was staying in room No. 4 on the first floor whereas the accused‑petitioners were staying in room No. 9 on second floor of the hotel. The hotel (the place of occurrence) is situate in Commercial Centre of Mirpur city on the back of Scheduled Banks. Undoubtedly, the place of occurrence is a public place situate in Commercial Centre where normally a number of people are present for their normal business. The victim of offence Mst. Anwar Begum was sleeping in her room, the door was not bolted from inside, the accused‑petitioners entered the room and made criminal assault resulting in rape. This is just to point out the alleged conduct and reck lessness of the accused‑petitioners who picked up courage to commit the offence with the lady who is the mother of eight children and naturally of sufficient age. Mohammad Akbar accused‑petitioner is stated to be married whereas Sardar Ali accused‑petitioner is still un‑married. The occurrence was Witnessed by Mohammad Salim and Fazal Karim. Fazal Karim is stated to be the owner of the hotel while Mohammad Salim is the bearer of the said hotel. Haji Mohammad Yousaf who was also staying adjacent to the place of occurrence reached the place of occurrence immediately after the occurrence. No motivation was. attributed to the witnesses or the com plainant. The names of the accused‑petitioners were also mentioned in the F.

1. R. This being so, the defence could not point out as to why the pro secution version, even at this stage of consideration of bail, may not be given due weight. In 1977 P Cr. L J 503, Mst. Shamim Begum, abductee, made two contradictory statements before the Court. It was a case of abduction, in one statement, she levelled the allegations of abduction against the accused‑petitioners, whereas, in another statement, she accused her relatives for forcing her to marry someone against her will. On this view of the matter, the learned Judge granted bail to the accused‑petitioners under section 363, Penal Code. In Mahmood and another v. The State (1977 P Cr. L J 588), it was a case of rape. Two eye‑witnesses mentioned in the F. I. R. did not support the prosecutrix. One of the witnesses termed the prosecutrix as a woman of bad character having falsely implicated 'the accused‑petitioner. The other one denied his knowledge about the occurrence. On this account of the matter, bail was granted. In Faqir Muhammad v. The State (1976 S C M R 157) there was allegation of abduction and rape Abductee in the case made contradictory statements whereby in one statement, she said that she left the house on her own accord. Similarly, according to one of the medical reports, she was found of major age. On this view of the circumstances bail was granted. The present case is quite distinguishable from the aforesaid cases in all respects. Here none of the eye‑witnesses except Mst. Anwar Begum has resiled from the version. Mst. Anwar Begum lodged the F. I. R. wherein she named the accused‑petitioners and levelled the charge of commission of rape and attempt to commit rape. Later on, an application alongwith affidavit was placed on the file of the District Crimi nal Court, Mirpur, on 12th of July, 1979. The lower Court failed to enquire into the circumstances which led Mst. Anwar Begum to file such an application and affidavit at the stage of consideration of bail.. As she had not appeared in this Court, therefore, it is not possible to enumerate the reasons for filing an application and affidavit in contradiction to the F. I. R. Besides that, under Shariat Law in cases of Hudood, Mst. Anwar Begum cannot be given credibility of a witness. Here, the standard of evidence required to prove the charge o` Zina or Zina‑bil‑jibr is consisting of four adult male Muslims. In case, the prosecution evidence lacks in standard. in quantity or quality, the alternate punishment provided under section 10 (3) of the said Ordinance is 25 years in the shape of `Tazeer'. Hence, even if the affidavit of Mst. Anwar Begum is taken into considera tion, the fact remains that according to the allegations, the accused‑peti tioners were liable under section 10 of the aforesaid Ordinance. Therefore, the circumstances and the reasonings given by the learned Judges in the aforesaid cases are not of any help to the accused‑petitioners. Ch. Lail Hussain learned counsel for the State in support of his contention, relied on Faqir Muhammad v. The State (1978 P Cr. L J 405). This was a case of rape arid abduction. Despite the fact, the victim was medi cally examined 2/3 days after the occurrence and also that the Inves tigation Officer found the petitioner innocent, bail was rejected. The learned Judge observed that "the allegations show that the petitioners and their co‑accused had acted in a highhandedness manner and had forcibly removed the girl for their immoral purpose. In Imtiaz v. The State (1978 P Cr. L J 740), the prosecutrix was dragged into the Haveli by the accused‑petitioners, closing its door and removing shalwar but interrupted in commission of intended nefarious act by arrival of P. Ws. and others. Despite the fact, there was a delay in lodging the F. I. R. bail was refused. In Haq Nawaz v: Falek Sher (1979 P Cr. L J 15), in a murder case, the only named witness in the F. I. R. exonerated the accused persons in his statement under section 164, Cr. P. C. Complainant had died, the Sessions Judge allowed bail but on revision in the High Court, the bail was cancelled on the ground that apart from the only eye‑witness and the complainant there were other circumstances which connected the accused with the commission of offence. In Rahat Masood v. The State (1978 P Cr. L J 841), the charge of offence under sections 392, 394, 397, 376, 368 and 366, Penal Code the accused was refused bail in consideration of the fact that he was arrested from the house of co‑accused soon after occur rence at the instance of prosecutrix and stolen car was also found parked in front of house and taken into custody by Police. In Khurshid v. The State (P L D 1979 Pesh.15), in a murder case, eye‑witnesses filed affidavits thereby exonerat ing the accused. petitioners. The learned Judge refused to consider the affidavits at the stage of bail and observed that such affidavits may be considered by the trial Court at the time of final adjudication. Bail was refused. Rahila v. The State (P L D 1978 Lah.1281), was a case of abduction and. rape. The learned Judge observed as under :‑‑ "Accused not only himself violating person of innocent girls and ruining their lives but also permitting his friends to enjoy at their cost. Accused‑petitioner, held, not entitled to concession of bail as his case falls within prohibition contained in S. 497 (1). Petition dismissed." In an unreported case of this Court 'Ajaib v. The State' decided. on 16th March .1979 by my Lord, the Chief Justice. There was a charge of rape and attempt to rape under sections 376/341, 354/511 and 34, . Penal Code.. It was observed as under :‑ "The principle that bail cannot be refused as a punishment is correct in so far as, the principle or theory is concerned, but if the intention of the law had been‑that everyone who is accused of a non‑bailable offence, is to be released on bail, then these offences would not have been made non‑bailable by the Legislature. These offences have been made non‑bailable so that the Court has the power to refuse bail in proper cases. After all, it can be argued in every case that bail should not be withheld as a punishment or that the accused should be released so as to able to defend himself. It has been held in several cases that gravity of the offence and the character and conduct of an accused may also be looked into." In that case. bail was refused to the accused‑petitioner against whom there was only an allegation of attempt to rape. It was. further directed that the accused‑petitioner could not be released on bail until the ,evidence was recorded. As stated earlier, in Azad Jammu & Kashmir Shariat Laws pertaining to Zina were enforced in February, 1979 and the case has been registered against the accused‑petitioners under the same. All matters including bail are to be determined in the spirit of Islamic Law. Whereas it is obliga tory on the Government in at‑ Islamic State to enforce Shariat laws, it is equally obligatory on the Courts to implement the same in letter and spirit. In Islam, in cases of murder, heirs of deceased are given right to forego Qisas by accepting "Diyat" or granting pardon to an accused person. In cases of Hadood, no such right is allowed either to prosecutrix or any other person to pardon an accused by accepting compensation or otherwise. It is matter between God and man and God has prescribed specific punish ment for an offender. Therefore, nothing except punishment for an offence of Zina, is the wages of sin. In the present case, the accused‑petitioners allegedly acted recklessly in a public place without caring‑ for the conse quences, therefore, in view of the allegations and conduct of the accused persons, they are not entitled to the concession of bail. Bail is a matter of right only in bailable cases. In non‑bailable cases, bail cannot be claimed as a right. In the present case, the learned counsel for the peti tioners could not show any special circumstances on account of which it may be considered that reasonable grounds were available for the grant of concession of bail to the accused. The order of the lower Court is not suffering from any defect and the lower Court has rightly exercised its jurisdiction by refusing the bail to the accused‑petitioners. On this view of the matter, the revision petition being devoid of force, is hereby rejected. The lower Court may consider the question of bail after recording some evidence and may decide the matter according to the evidence. Petition dismissed.