1984 P Cr (PLP)

Muhammad Afzal Wahlah for Respondent. Sabir Naseem for the State. This is an application for cancellation of bail granted to the accused -respondents by Mian Ghulam Ahmad, learned Sessions Judge, Sheikhu pura, vide his order, dated 19th February, 1984.

2. I had earlier dismissed their bail application in Criminal Miscella neous No. 1988-8(83 on 24th August, 1983.

3. The allegation against them was that they had ravished a young girl of 13 during day time in a garden where she had gone to ease herself. The F. I. R. was lodged after the delay of six days. In the medical examination, the prosecutrix was found to have no marks of violence on her person but her hymen was healed though torn at 4 o'clock position. No semen was detected as per report of the Chemical Examiner and in the doctor's opinion, no sexual intercourse was committed within 17 days obviously before her medical examination taking place on 4th May. 1983. However, there was further observation that the vagina was tight and admitted two fingers with difficulty causing pain.

4. Among other things, it was noted in my aforesaid order dated 24th August, 1983, that the respondents bad slapped the girl at a lonely place. No explanation was offered for this act of an unruly behaviour. Correspondingly, her case was that she had resisted and was slapped down. This appeared as the first version of the accused-respondents and in fact was considered to be rather a vital circumstance justifying in some measure absence of injuries on her person.

5. Nearly 4-5 times their applications moved before Ch. Anwar Ali, Additional Sessions Judge, Sheikhupura, were turned down. Incidentally, he was away to Islamabad on Shariat Course when in his absence last time, they moved an application before Mian Ghulam Ahmad, Sessions Judge, Sheikhupura who in his order dated 19th February, 1984 allowed them bail primarily on the ground that the challan had not yet been filed. He was further influenced by the fact that since the prosecutrix alone was the witness, most likely it will not turn out to be a case of Hadd.

6. By the present petition moved on behalf of the victim, it was contended that the very premise upon which the learned Sessions Judge proceeded to grant bail was not obtaining as on the relevant date. He was in fact said to have been misinformed by Muhammad Sadiq A. S. I. that the challan had not yet been filed in the Court. According to counsel, the challan bad already been filed in the Court of the Ilaqa Magistrate on 7th December, 1983 and that in a way, the learned Sessions Judge was misled to believe otherwise. A certified copy of the challan has been placed on the present petition. It supports the version that it had been filed with the Ilaqa Magistrate on 17th December, 1983. Therefore, the learned Sessions Judge while passing the order was led to make an incorrect assumption.

7. It was, however, contended that since the case was triable by the Court of Session, what the Police official meant to convey was that the challan had yet not been presented there. This plea appears to be a sub terfuge for the mischief. Challans in case triable by the Court of Session have to be invariably filed before the Ilaqa Magistrate and then those are sent up. The order was for obvious reasons procured by misrepresenta tion. The learned Sessions Judge, Sheikhupura, will proceed against then Police official, namely, A. S. I. Muhammad Sadiq, who conveyed him the wrong information.

8. The other ground which weighed with the learned Sessions Judge was that possibly the punishment will not be Hadd. The inference though not very wrong missed entirely to visualise that the punishment could be even imprisonment for twenty-five years under section 10 of the Offence of B Zina (Enforcement of Hudood) Ordinance, 1979. This is how undue leniency was shown to the accused-respondents on these hypotheses.

9. There was some confusion about the medical opinion by which the lady doctor had expressed that the prosecutrix had not been ravished within 17 days before her medical examination on 4th May, 1983. In fact, this opinion appeared to be somewhat anomalous to me and I had to call the lady-doctor who is present in Court. She has referred to page 143 of Medical Jurisprudence and Toxicology by Dr. S. Siddiq Hussain, 5th Edition, 1976, which no doubt provides:- "In the living woman, motile spermatozoa in the vagina can be found over 100 hours after coitus and non-motile spermatozoa for as long as 17 days .......

10. Theoretically, the doctor may not be wrong to hold the opinion but then presence of blood on the swabs had to be accounted for. Nothing came from her expert opinion about it. Likewise, absence of semen is way was not decisive because there was possibility of the male not ejacula ting semen at all due to anxiety, or nervousness which he may be facing at the time of committing the offence. On his own showing as his first version, the accused had to slap the girl. It obviously suggested that he had not an easy-go and the moments were turbulent to affect his C ability to ejaculate. Correspondingly, the presence of blood on the swabs, healed tears on the hymen, its tightness as also tenderness to admit two fingers only with pain, constituted data to give some weight to the version of the prosecutrix. She was by age only

13. There should be some inspiring material to ascribe changes in her hymen to some other event. She was not shown to be used to sexual intercourse earlier and the fact that her orifice was too tender to be touched, suggested that she was outraged for the first time in all probability in the impugned occurrence.

11. It was argued with reference to a few authorities that bail once allowed may not be recalled especially when long time was taken to submit challan and the speedy trial of the accused was not in sight. The respon dents had been in detention for about 8 months awaiting completion of the challan. No doubt, early submission of challan is the need for speedy trial but at times manoeuvring delay purposely may not be ruled out. Anyway, second proviso to section 497 (1), Cr. P. C. takes care of delay in trial and after the lapse of prescribed time, it becomes almost a right to seek bail. D As a corollary, delay of lesser duration may not necessarily justify bail. The respondents detention was yet not of the requisite length and did not of its own force matter much. The safer and sagacious course seems to see the basic facts involved in a criminal case. Allegations-wise, having had a go upon an adolescent virgin girl of a cobbler's family by an accused claiming himself to be a Zamindar in a secluded place during day time speaks much for itself. The medical data to a great extent lends corro boration to it, all the more when the unsophisticated victim of 13 was not tans character.

12. The learned Sessions Judge who had earlier dismissed no less than five applications for bail made by these very respondents, was due back on 25th February, 1984 after completion of Shariat Course, The learned Sessions Judge should have in propriety waited for four days till the Additional Sessions Judge could resume and take up this application for his own consideration. Probably the respondents availed an opportu nity unconscionably. The rule is that the same Court should deal with all subsequent applications by the same accused or others involved in the same case. Muhammad Yousaf v. The State (1984 S C M R 134) may be referred to.

13. For all the above reasons, I cancel the respondents' bail. They be taken into custody.

14. A copy of this order shall be sent to Mian Ghulam Ahmad, the learned Sessions Judge, Sheikhupura, to take action against the concerned A. S. I. as observed above. M. A. K. Bail cancelled.