2001 P Cr (PLP)

Muhammad Hanif Saleemi for the State. Ch. Jamil Ahmad Sandhu, Advocate. The petitioner Farzand Ali complainant of case F.I.R. No. 167 of 2000, dated 19-4-2000 registered at Police Station Sharkpur Sharif for the offence under section 19 of the Offence of Zina (Enforcement of Hudood) Ordinance, 1979 in regard to an occurrence which is alleged to have taken place at 4-00 p.m. on 18-4-2000 in the fields of village Madar Sharif in which the complainant's daughter Nagina Bibi aged 9/10 years, who is stated to be a deaf girl, was allegedly subjected to Zina-bil-Jabi by respondent Muhammad Hanif son of Muhammad Tufail, aged 14 years, is seeking cancellation of post-arrest bail granted to the abovesaid Muhammad Hanif by the learned Additional Sessions Judge, Ferozewala on 30-5-2000.

2. The facts in brief as narrated in the F.I.R. are that on 18-4-2000 at about 4-00 p.m. when the complainant came back to his house, his wife informed him that their daughter Nagina Bibi had also followed the complainant to the well, upon which the complainant in the company of P. Ws. Hakam Ali and Muhammad Rafique went towards his well in search of his daughter and on their way they heard cries from die wheat crop of one Waryam and on reaching the spot they saw respondent Muhammad Hanif committing Zina-bil-Jabr with Mst. Nagina Bibi, who on seeing the complainant and the P.Ws. ran away. It is also narrated that the respondent and his family members had been beseeching the complainant from taking any action against the respondent which caused delay in lodging the complaint. F.I.R. was lodged on 19-4-2000 at 6-30 p.m.

3. The respondent was arrested on 19-4-2000. The victim Nagina Bibi was medically examined on 19-4-2000 and according to medical examination report no marks of violence were detected on any part of her body and hymen was torn. One vaginal swab was taken and was sent to Chemical Examiner and in the opinion of doctor the victim was subjected to sexual intercourse. According to the report, dated 3-5-2000 of Chemical Examiner for the Punjab, Lahore, two vaginal swabs were received in his office and they were found to be stained with semen. The report also narrated that one swab was sent to' Serologist for semen grouping but no such report has been brought on record or shown to me. The respondent was also medically examined on 20-4-2000 and was found fit for sexual intercourse. Initially the investigation was conducted by A.S.I. Muhammad Akram of Police Station Sharakpur who found the respondent as guilty as alleged and thereafter, on the asking of respondent, the investigation was transferred and was conducted by Mr. Umar Farooq Bhatti, D.S.P., Ferozewala who recorded the respondent's version and the eye-witnesses of the occurrence, namely, Hakam Ali and Muhammad Rafique also appeared before him and gave affidavits to the effect that they did not see any such occurrence. The abovesaid D.S.P., however, did not declare the respondent as innocent because the challan papers had already been prepared and left the matter to the mercy of the Court. The investigation has, thus, beet-, completed and challan has been submitted in Court.

4. The learned Additional Sessions Judge, Ferozewala vide his order dated 30-5-2000 as mentioned above, granted post-arrest bail to the respondent, on the ground that (i) the two P.Ws. have supported the defence version regarding the innocence of the accused by submitting their respective affidavits which are available on the record, (ii) Muhammad Rafique P. W. appeared before the Court and got his statement recorded about the innocence of the accused and for these reasons, it was a case of further enquiry. The learned Additional Sessions Judge has also recorded that according to the medical report as well as school leaving certificate the accused is a minor:

5. I have heard the learned counsel for the petitioner, the State, the complainant and have also seen the record.

6. It is contended by the learned counsel for the petitioner that according to the medical examination report, respondent has attained adulthood as he is capable of performing sexual intercourse and the provisions of section 7 of the Offence of Zina (Enforcement of Hudood) Ordinance, 1979 are not applicable to the respondent's case and, therefore, he is not entitled to the half of the sentence provided in section 10 of the Offence of Zina (Enforcement of Hudood) Ordinance, 1979, as such, the offence as alleged against him falls within the prohibitory clause of section 497, Cr.P.C. and the learned Additional Sessions Judge, Ferozewala has acted illegally in granting him bail. Reliance in this regard has been placed on Khan Zaman v. The State 1991 PCr.LJ 928, wherein it has been held that even if a person has not attained the age of 18 years, he would be treated as an adult, if he is capable of ejaculate and discharge semen. Reference has also been made to the definition of adult given in section 2 of the Offence of Zina (Enforcement of Hudood) Ordinance, 1979. Further, reliance in this regard has been placed on Abdul Jabbar v. The State PLD 1991 SC 172 (Shariat Appellate Bench). It is submitted next that the Superior Courts of this country have deplored the practice of the submission of the affidavits of the P.Ws. at the bail grant stage with a view to make the prosecution case doubtful. Reliance in this regard is placed upon Naseer Ahtnad v. The State PLD 1997 SC

347. It is further argued that the victim's statement is enough to bring home the guilt of the accused. Reference has been made to Khalil v. Maulvi Miskeen and another 1995 PCr.LJ 1701. Further, reliance in this regard is placed on Allah Yar v. The State and another 1993 PCr.LJ 1600 where the prosecutrix had given a direct account of occurrence with the allegation of Zina duly supported by medical evidence and positive chemical examination report and in these circumstances the bail granted to the accused was recalled. In the end it is submitted that in such-like cases, involving family disgrace, delay in lodging the F.I.R. is not fatal and the same has been satisfactorily explained iii the F.I.R. Reliance in this regard is placed on Muhammad Wasi Qureshi v. Abdul Majeed and others 1993 MLD 212 (Karachi).

7. The learned counsel for the State has opposed the contentions and has submitted that there is no irregularity in the grant of bail and has thus, supported the order of learned Additional Sessions Judge, Ferozewala.

8. The learned counsel for the respondent while opposing the petition has submitted that the eye-witnesses of the occurrence have not supported the prosecution case which makes the whole case doubtful. It is argued that the respondent has been involved falsely due to previous enmity between the parties. In this regard Muhammad Tufail, the father of respondent Muhammad Hanif has come forward and has stated today in Court that about 8/9 months ago his brother Akbar broke the arm of Fazal, the father of the present petitioner Farzand Ali but he has failed to produce any documentary proof of this enmity. He has further stated that he had filed a pre-emption suit against Rehmat, brother-in-law of the petitioner Farzand Ali and Sardar Ali, father-in-law of Farzand Ali which was dismissed about 3/4 years ago.

9. After hearing the learned counsel for the parties at length and after having seen the record I am of the view that one cannot be definite about the previous enmity between the parties. Record also shows that there is allegation against the petitioner that previously also he had involved some?one else in a similar case and the matter was settled on the payment of some money but these allegations are also without any documentary record. However, even if it is held that due to absence of any previous enmity there was no reason for the petitioner to falsely involve the respondent in the commission of such a heinous offence of Zina-bil-Jabr with a deaf girl of 9/10 years of age, obviously involving family dishonour and disgrace, yet so far there is nothing available on the record to connect the respondent directly with the commission of the offence and the circumstances show that it is a case of further enquiry because the report of Chemical Examiner shows that two vaginal swabs were sent to his office whereas according to the Chemical Examination Report, mentioned above, only one vaginal swab was sent to the office of Chemical Examiner. Furthermore, the report of the Chemical Examiner shows that one swab had been sent to the Serologist for semen grouping but the report of the Serologist has not been brought on record A which points towards the weakness in the prosecution case and in the absence of such a report it cannot be said with certainty that the semen detected in the vaginal swab was of respondent Muhammad Hanif. These circumstances coupled with the fact that the P.Ws., though closely related to the petitioner have totally absolved the respondent of the commission of the offence by giving affidavits before the Investigating Officer to the effect that they did not see any such occurrence as alleged in the F.I.R. and by declaring the respondent as innocent, have made it a case of further enquiry. No doubt the trend that eye-witnesses take somer sault and give statement different from prosecution case and file affidavits at the stage of hearing of bail application with the intention of creating doubt in the prosecution case to enable the accused to get the bail, has been deprecated by the Honourable Supreme Court in Naseer Ahmad v. The State (sripra) with the observation that Courts have to be very careful in such cases and see that bail applications are disposed of strictly according to law on merits keeping in view the distinction between the tentative assessment and actual evaluation of evidence by the trial Court. However, in the present case the P.Ws. are closely related to the complainant/petitioner and they gave affidavits absolving the accused soon after the occurrence, before Mr. Umar Farooq Bhatti, D.S.P., Ferozewala and not at some later stage at the time of hearing of bail petition. B I have also seen the respondent, who is present in Court. He is a young boy of tender age by his looks also. In these circumstances I am not inclined to recall the concession of bail granted to him by the learned Additional Sessions Judge, Ferozewala. Even otherwise, the considerations for the cancellation of bail granted to an accused are entirely different than the ones IC for the Rrant of bail.

10. In view of the abovementioned I see no merit in this petition which is accordingly dismissed. H.B.T./F-19/L ???????????????????????????????????????????????????????????????????????? Petition dismissed.