1994 P Cr (PLP)

Anwar-ul-Haq for the State. Learned Additional Sessions Judge Sahiwal, Mian Subah Sadiq, had on 15-5-1993 dismissed the bail petition of Abdul Hameed accused, who has approached this Court for his release on bail.

2. He is involved in a case under section 10, Offence of Zina (Enforcement of Hudood) Ordinance (VII of 1979), registered at Police Station Ahmad Yar, vide F.I.R. No.131, dated 13-9-1992, Nazir Ahmad being the complainant, whose minor daughter Mst. Sakeena Bibi had allegedly been subjected to Zina-bil-Jabr by the accused, outside in the fields, in the afternoon on 11-9-1992. She was busy cutting grass in a field, when she was overpowered by accused, Abdul Hameed alias Kali, who was armed with a Chhuri and had held out threat to her. Per force the accused committed sexual intercourse with the girl, and when she raised alarm, Khadim Shah, Zahoor and Rafiq, working in the fields nearby, were attracted to the spot but the accused made good his escape, after having warned them with display of dagger in his hand. She was found in naked condition, lying unconscious on the ground, and was brought home by her father, with the help of the P.Ws. and on the next day she was got medically examined in the Civil Hospital, Muhammad Nagar, Arifwala.

3. Learned counsel appearing for the applicant-accused has highlighted the delay of about two days in the registration of the case and maintains that it is a false case that has been foisted on the accused, against a background of party faction in the village. It is also pointed out that, in police investigation, the accused had been found to be innocent. The witnesses, it is submitted, are interested persons, being relatives of the complainant. Attention of the Court has also, in particular, been drawn to the fact that the offence under section 10 of the Zina Ordinance had been dropped and converted into one under section 354, P.P.C. and thus the allegation of Zina having been committed with the girl was found to be false and fabricated.

4. I have gone through the record of investigation. It makes indeed an extremely reprehensible reading. The manner in which investigation had been conducted in this case constitutes a woeful story; and I wish, those in the Police Department, who are so callous besides being dishonest, be dealt with stringently and awarded exemplary punishment. So, influential was this accused, belonging to a powerful Khichi tribe, that he evaded his arrest, rather the police did not care to apprehend him, over several weeks. The occurrence took place on 11-9-1992, and the F.I.R. was lodged on 13-9-1992, and the accused was hauled up on 31-10-1992. The investigation passed through different hands, Muhammad Amin S.I., Bashir Ahmad S.I., A.S.P. Arifwala and D.S.P. Circle Arifwala. The S.H.O., Police Station Ahmad Yar had finalized the investigation and drawn up the final report under section 173, Cr.P.C. in early November, 1992. Muhammad Amin, S.I., however, deleted the offence under section 10 of Ordinance VII of 1979, and gave the opinion that no serious mischief with the girl had been committed, and the offence at worst made out would fall under section 354, P.P.C. The A.S.P. Arifwala, however, `restored' the original offence under section 10, Zina Ordinance. Once again, the accused, who wields influence, manoeuvred entrustment of investigation to D.S.P. Circle Arifwala. He started pestering and pressurizing the complainant, who had to address complaints against this conduct to the Prime Minister of Pakistan, the Chief Minister of Punjab, the I.-G. Punjab, the D.I.-G., Multan, the Deputy Commissioner and the S.S.P. Sahiwal. The D.S.P. told the complainant that he was of the opinion that Zina had not been committed with the latter's daughter, Sakeena, and Abdul Hameed alias Kali was not the culprit. This was his view, in spite of awareness about the medical opinion and chemical examiner's report, and although the witnesses, Sakeena, Rafiq and Zahoor had fully supported the complainant's version, in their statements under sections 161 and 164, Cr.P.C. It was the same D.S.P., who had directed the S.H.O. to challan Sakeena too as an accused. In the course of investigation it was also brought on record that she was a girl of easy virtues and had illicit intimacy with Muqaddas Shah, Afzal Shah, etc. This was actually, the version of the accused before the police, which the police shamelessly and perversely adopted as being correct. 5. 1 have recorded certain observations in the course of my order, dated 18-5-1993, in the proceedings of interlinked Criminal Miscellaneous No.726/B of 1993. The medico-legal report would leave little doubt about the fact that the girl had been subjected to rape in a monstrous manner and the accused had behaved in a beastly fashion. She was certainly an unwilling partner to the act, as she had received bruises on breast and scratches on sides of neck and inner sides of her thighs. Hymen had multiple tears and there were bruises around uterus which admitted two fingers tightly. There was also blood discharge. It was a very recent incident, and most probably the first act of coitus. With a `Chhuri' in hand, the accused had jumped upon the poor helpless girl, on having been subdued by his animal urge of most savage character, and modesty of a poor cobbler's daughter, who had hardly attained E the age of puberty, had been deflowered. The chemical examiner had detected semen and confirmed performance of sexual intercourse with the girl; and yet some of the Investigating Officers, particularly the then D.S.P. Circle Arifwala, were of the opinion that the girl had not been subjected to Zina, but had only been dealt with roughly or indecently. What a preposterous and absurd observation! What a crooked and wicked approach! The S.S.P. Sahiwal, to whom a copy of this order shall be sent, shall hold an inquiry and proceed against these monsters of his Department, who have least fear of the Dooms Day and a scant regard for moral and social scruples, nay, their own organisational obligations. Action taken shall be intimated within a month.

7. The D.S.P. kept the file with him for months together, after having summoned it on 12-i1-1992, and it was sent up on 7-7-1993. This unusual delay caused in the finalization of the investigation and submission of the challan is another aspect of the matter, that should engage the attention of the District Police Head.

8. The girl appears to have become a victim of the most sinister crime, but an unholy effort was made to turn the victim into an accused. I am least convinced that she was a consenting party to all that; but even if she was, it would not exonerate Abdul Hameed, the male partner, and minimise the heinousness of his crime. Abdul Hameed alias Kali, as already said, it appears, has access to the police agency and other quarters; and keeping in view the magnitude or extent of the influence that he commands and has exhibited in the proceedings of investigation, it may be observed, without any fear of contradiction, that if released on bail, he would give a hell to the complainant and his daughter and play havoc with the cause of justice. He must not be enlarged on bail, for there is little doubt about his complicity in this incident of I highly heinous character. His prayer for admittance to bail is rejected. N.H.Q./A-500/L Bail refused.