' HASNAT AHMAD KHAN, J.--- Through this application, Muhammad Iqbal petitioner, has sought post-arrest bail in case F.I.R. No,242 of 2006 dated 8-8-2006, under section 10/18, Offence of Zina (Enforcement of Hudood) Ordinance, 1979, registered with Police Station Shaher Sultan, District Muzaffargarh.
2. Brief facts of the case as narrated in the F.I.R. Lodged at the instance of ,Shafiq-ur-Rehman complainant, are that the petitioner had ravishingly committed Zina-bil-Jabr with complainant's daughter namely Mst. Zakia Bibi who is a girl of tender age of just 10 years.
3. In support of this petition, learned counsel for the petitioner has submitted that according to the medical report, no internal or external sign of violence could be observed on the private parts of the body of the victim by the doctor, as such, at the most it is a case of attempt to commit Zina. He further adds that the petitioner is young lad of 14/15 years of age and being a juvenile, he is entitled to bail. He further adds that investigation in this case was conducted in violation of section 156-B, Cr.P.C. Which requires that the investigation of cases of Zina cannot be conducted by the officer not below the rank of S.P. He further adds that the challan has been submitted under section 18 of the Offence of Zina (Enforcement of Hudood) Ordinance, 1979 and not under section 10 of the said Ordinance.
4. On the other hand, learned counsel for the complainant has opposed tooth and nail this bail application by contending that a girl of tender age of 10 years has been ravished by the petitioner.
Her entire future has been ruined. He adds that according to the report of Chemical Examiner, swa bs have been found to be stained with semen which negates the contention of the learned counsel for the petitioner according to which, offence of Zina had not been committed. He further adds that in case of Zina-bil-Jabr with a girl of tender age, it is not always necessary that marks of violence be seen on the body of the victim. In this regard, he has placed reliance upon the case of Modi's Text Book of Medical Jurisprudence and toxicology which states that in the small children the hymen, being situated high up in the canal, is not usually ruptured in case of sexual activity, on the contrary, it may become red and congested along with the inflammation and bruising of the labia. He has relied upon the case reported as Muhammad Sadiq and others v. The State 1980 SCM R 203, Rasheed alias Sheedi v. The State 2006 YLR 1463, Ahmad Sher v. The State and another 2006 PCr.LJ 1450 and Noor-ul-Hassan and another v. The State and another 2006 PCr.LJ 2001.
5. After hearing both the parties, it has been straightway noticed that in a broad-daylight abominable offence of Zina-bil-Jabr was committed with a girl of tender age of 10 years. The occurrence was seen by the witnesses. Report regarding the occurrence was lodged on the same day. The record produced by the police contradicts the plea of the petitioner that the petitioner has not been challaned under section 10 Offence of Zina (Enforcement of Hudood) Ordinance, 1979.
Rather it shows that the offence under section 18 was deleted and the petitioner has been challaned under section 10 of said Ordinance. There is positive report of Chemical Examiner which tentatively support the case of the prosecution. Deeper appreciation of the evidence is not permissible at this stage, especially when the challan has already been submitted and the case is ripe for start of the trial. As far as the plea of minority is concerned, admittedly the petitioner has not yet moved for declaring himself as juvenile and until and unless he is declared juvenile by the Court of competent jurisdiction, he cannot be giving benefit under the Juvenile Justice System Ordinance, 2000. The worth and authenticity of the school leaving certificate of the petitioner, showing him of tender age, would also be seen at the relevant time. As far as the plea of petitioner that the investigation was conducted in violation of section 156-B, Cr.P.C. Is concerned, bail cannot be granted simply on said technical ground, especially when it is a case of Zina-bil-Jabr committed with a very little girl of about 10 years. Admittedly, the process of the investigation was not challenged by the petitioner at the relevant time and after submission of the challan, the trial Court is seized of the matter and pros and cons of the case would be thrashed out by the said Court. At present suffice it to observe that the offence allegedly committed by the petitioner besides being abominable and heinous in nature, falls within the prohibitory clause of section 497, Cr.P.C. Therefore, the petitioner is not found to be entitled to the concession of post arrest bail.
Consequently, the petition in hand is dismissed.