This bail application has been moved by Mohammad Tahir Mahmood accused of an offence under section 10/16 of the Offence of Zina (Enforcement of Hudood) Ordinance, 1979.
2. Brief facts of the case are that the petitioner, Mohammad Tahir Mahmood together with three others was reported against by lady in advance years of age between 50/60 years vide F.I.R. No. 42 dated 16th May, 1982, Police Station Kallar Kahar, district Jhelum with respect to an occurrence on the previous night. The allegations in the F.I.R. Are that the lady resides at her dhoke with her two children and a servant Farzand who is dumb. On the night of occurrence i.e. Between 15th and 16th May, 1982, she was sleeping in the courtyard of her house which does not have a haveli. In the early hours of night four persons came into her courtyard whereupon she woke up. Thereafter a person who was tall placed his hands on her mouth and others started beating her dumb servant.
Thereafter she ran towards the dhoke of Babe Jahana and she had hardly covered a distance of about two fields when these four persons chased her and got hold of her. There she recognised Mohammad Tahir Mahmood son of Khan Bahadar caste Minhas, resident of Bhaun, the present petitioner before me. First of all the tall man committed zina with her and thereafter, the three other accused committed similar acts. She further stated that in the end when the accused Tahir was committing zina, the tall man called out his name and asked him to hurry up. She raised hue and cry and the accused ran towards Bhaun. According to the F.I.R, version she did not know the frame of other accused but she could identify them. Soon after her raising hue and cry and by the time she returned to her dhoke Mohammad Sadiq son of Muhammad Nawaz who lives in neighbouring dhoke arrived and was narrated the incident. Out of fear she spent the night at the other dhoke.
3. That after the registration of the case, police got the lady medically examined on 17th May, 1981 as a result whereof marks of violence on her private parts as well as other parts were found to exist by the doctor who was of opinion that sexual intercourse had beets committed with her within the duration of 2/3 days. Two vaginal swabs were taken and sent for the Serologist and Chemical Examiner's report. According to the doctor, she was an old woman of 55 years. The medical examination of the accused was also conducted by a doctor for potency on 29th May, 1982. It was opined that he was fit to perform the sexual acts. His age is given as 22 years and occupation recorded as a truck driver.
4. The petitioner applied for bail before the learned Sessions Judge, Jhelum on 9th June, 1982 which was dismissed on 27th June, 1982. Hence the present bail application in which notice had been given to the State.
5. Learned counsel appearing in support of this bail application has strenuously argued that during the investigation by the D. S. P. He was of the opinion that the petitioner appears to be innocent as it was so stated by many persons of the village. According to the learned counsel, there--fore the petitioner was entitled to the benefit of the opinion of the D. S. P. During the investigation. He relies on decision of this Court reported in 1974 P Cr. L J 450. However, in the facts and circumstances of the case and perusal of the zimnis showed that the opinion of the D. S. P. Was not based on investigation on merits, but a number of persons had appeared before him to say that he appears to be innocent. An opinion of police officer during the investigation is never binding by its own force upon the Courts. Each criminal case proceeds on its own facts and the opinion of the nature as has been mentioned in one of the zimnis in the present case does not presently inspire confidence.
Moreover, this circum--stance by itself cannot be successfully urged as a ground for grant of bail as a rule. In the peculiar circumstances of this case, it also would not furnish sufficient ground in law for the enlargement of accused on bail despite being accused of commission of heinous offence when there is pirma facie evidence connecting him with the offence.
6. Learned counsel for the petitioner next contended that the case against the petitioner was based on the solitary statement of the lady and therefore, it was a case of further enquiry which entitled him to be admitted to bail. The contention in my view has little merit. The lady is a respectable person in advanced years of her age and while sleeping at her dhoke she was subjected to commission of heinous offence. The medical evidence does lend corroboration and support to her version g given in the F. I. R. The petitioner was identified by her and he is the only one named therein out of the four accused. It is not a case of solitary statement of young prosecutrix whose romantic involvement or immoral background can be pressed into service.
There appear presently no reasons why she would put her reputation at stake when she has a family. Accord--ing to the police official she is a highly respected lady. On behalf of the accused the status of the lady was disputed on the plea that she was not abig landlady who owns several squares but owned only few acres of land.
This is hardly a relevant circumstance. A person with a small holding is as much entitled to protect her honour as a rich person and poverty of al victim is in no manner a mitigation circumstance to favour of an accused person.
7. It was also submitted by the learned counsel for the State that the Serologist report is still awaited and the other accused are yet to be identified, as the lady is not in a fit state of health to undertake the same.
8. On behalf of the learned counsel for the petitioner, the question of delayed F. I. R. Was also obliquely canvassed. I do not think in the facts and circumstances of this case and keeping in view the nature of the offence and the manner in which it was committed the delay is of much consequence. Further argument of the learned counsel for the petitioner that there was no eye- witness has also not impressed me. Every case would depend on its own facts and circumstances.
Cases can be visualised where finding a woman alone or in isolation a criminal feels prompted to subject her to rape. This by itself would not constitute sufficient circum--stance in the present case for an inference that there exist reasonable grounds for believing that the petitioner is not guilty of the offence with which he is charged.
9. After having given my most anxious consideration and keeping in view the facts and circumstances of case, I have reached the conclusion that this is not a fit case for exercise of discretion to admit the petitioner to bail. The bail petition is accordingly dismissed. However, before parting with the case as per request of the learned counsel for the petitioner I would like to make an observation that the Investigating Agency should try to expedite the submission of the challan.
Bail not granted.