SARDAR TARIQ MASOOD, J. - Complainant sima Bibi (minor) through her real father namely Shabbir Ahmad son of Allah Bakhsh petitioner seeks cancellation of ail before arrest granted to Siraj Ahmad son of Bakhat Ali, respondent No. 2 in case F.I.R. No. 335/09, dated 7.6.2009, offences under Section 376, P.P.C. Registered at police Station Noshera Jadeed, District Bahawalpur.
2. Briefly the allegation mentioned in the F.I.R. Is hat respondent No. 2 alongwith Muhammad Hashim and one Rustam kidnapped Mst. Asima Bibi and committed gang rape with her.
3. Respondent applied for his pre-arrest bail before the learned A.S.J. And the same was confirmed vim order dated 11.7,2009.
4. The learned counsel for the petitional contended that respondent No. 2 and his co-accused Rustam committed rape with Mst. Asima Bibi one by one and learned A.S.J. Had illegally confirmed the pre-arrest by petition of the respondents. Further contended that no mala fide or ill-will could be proved by respondent No. 2 for hid involvement in this case. The F.I.R. Relied upon by learned A.S.J. Is old one and the victim of the said case has already disown the said case. Further contended that no Court ha<] declared the respondent as juvenile. It is also contended th the learned A.S.J. Had wrongly interpreted Section 10(5) the Juvenile Justice System Ordinance, 2000 as responder No. 2 alongwith his co-accused had committed gang rap| and said offence is punishable with death or imprisoner for life.
5. The learned counsel for the responder contended that as the petitioner is a juvenile hence, his case falls within the ambit of Section 10(5) of the Juvenile Justice System Ordinance, 2000 and that the learned A.S.J. Ha| rightly allowed pre-arrest bail to respondent. Further contended that the medical evidence does not support the story mentioned in the F.I.R. As there is no mark of violence on the body of the victim girl.
6. Heard. Record perused
7. Framework and guidelines for granting be before arrest is given in Murad Khan's case (PLD 1983 82) and thereafter in many judgments by the Honourable Supreme Court.
Grant of bail before arrest is an extra-ordinary relief be granted only in extra-ordinary situation to protect councel persons against victimization through abuse of law for interior motives and pre- arrest bail cannot be granted unless II the conditions are satisfied for allowing bail before arrest specially the conditions regarding the mala fide were roved. In this case no mala fide or ill-will or ulterior motive ould be proved by respondent No. 2.
8. In the F.I.R. The victim had categorically stated hat firstly respondent Siraj Ahmad forcibly after breaking the training of Shalwar of the victim committed Zina-bil-jabr with er and thereafter co- accused Rustam Ali had committed zina-bil-jabr with her.
9. Section 376(2), P.P.C. Says that, "when rape is committed by two or more persons in furtherance of common contention of all, each of such person shall be punished with eath or imprisonment for life." In this case it is alleged that Siraj Ahmad respondent No. 2 and co-accused Rustam had committed Zina-bil-Jabr with Mst. Asima Bibi one after the other. Hence, their case falls under the prohibitory clause of section 497, Cr.P.C. And the case of respondent No. 2 does ot fall under Section 10(5) of the Juvenile Justice System Ordinance, 2000.
10. So for as the ground of minority is concerned, he act done by the respondent indicated that he had attained sufficient maturity and till now no competent Court ad declared him Juvenile arid learned A.S.J. Only relied pon the opinion of the I.O. Regarding the age of respondent 2. Learned A.S.J. Had comitted to appreciate the important proviso to Section 10(7) of the Juvenile Justice system Ordinance, 2000, whereby the bail could have confused to the minor if he is found to be involved in the offence which was serious, heinous, sensational in character nd shocking to the public morality.
11. Learned A.S.J. While allowing bail to the accused respondent No, 2 mentioned that according to the .L.R. Sexual intercourse had been committed with Mst. Sima Bibi but it has not been mentioned whether rape was committed by one or more than one person. The approach of he learned A.S.J. Is illegal as it cannot be ascertained by the Medical Officer as to how much persons had committed!
The sexual intercourse with the victim. The medical report of) the victim indicates that there was multiple abrasions with[ reddish coloured bruises on the whole inner side of both thighs and there were multiple abrasions on front of both! Knee joint. Hymen was found ruptured with fresh margins!
Reddish in colour. Vagina admitted two fingers very tightly and painfully. Vaginal walls are reddish and swollen. The age of Mst. Asima Bibi is just 12/13 years and mark of violence mentioned by the Doctor indicated that she was! Badly raped and Medical evidence fully corroborates the ocular account.
12. It is also an important aspect of the case that an application was moved to the Magistrate regarding the medical examination of respondent No. 2 to ascertain his potency and age but as the learned A.S.J. Had confirmed his bail so this important piece of evidence could not bel collected. By confirming the bail petition of respondent No. 2,1 learned A.S.J. Actually stifled the process of investigation! Which is not permissible in law.
13. In view of this matter, the discretion exercised by the learned A.S.J. In admitting Siraj Ahmad respondent No. 2 to bail before arrest through the impugned order was not sustainable.
Consequently, this petition seeking Cancellation of bail of respondent No. 2 is hereby allowed and the ing order of learned A.S.J. Dated 11.7.20091 is hereby recalled. Respondent No. 2 he taken into custody in accordance with law.
While deciding this petition for cancellation of bail I felt compelled to discuss the merits of the case due to some of the observations of the learned A.S.J. It is however, clarified that above conclusion/observation reached by this Court is only for the disposal of this petition for cancellation of bail and should not be taken as ultimate finding on merits of the case and would have no bearing during the course of trial! Upon the case.