The respondent stands accused of an offence punishable under sections 10 and 11 of Ordinance VII of 1979 vide F.I.R. No 257 dated 13-8-1988 of Police Station Gaggo of District Vehari. The said F.I.R.
Was recorded at the instance of one Mst. Nargas daughter of Lal Din.
2. Through this F.I.R., it was alleged that Mst. Nargas complainant was deceived to go into the house of Mst. Sakina accused where Akbar respondent committed Zina-bil-Jabar with the complainant on pistol point and also obtained her signatures on blank papers etc.
3. Akbar respondent was arrested on 29-8-88 and was released on bail by the learned Addl.
Sessions Judge, Vehari within a fortnight vide his order dated 12-9-1988.
4. This is a petition for cancellation of bail allowed to the respondent which is pending before this Court since December, 1988, and had been adjourned on various dates at the instance of the respondent except once.
5. The learned counsel for the respondent has argued that there is an unexplained delay of ten days in lodging the F.I.R. That as per the medical evidence no marks of violence or injuries were found on the person of the complainant whose vagina admitted two fingers easily, that there was no direct evidence available against the respondent except the solitary statement of the prosecutrix herself, that prior to the recording of the F.I.R. The father of the complainant had moved an application before the S.S.P. (which is not on record) which, according to the learned counsel, did not contain any allegations of Zina--bil-Jabr, that two of the co-accused of the present respondent had since been declared innocent by the police which casts serious doubts on veracity of the prosecution story and finally that the trial against the respondent had commenced and 20- 5-1989 was the date fixed for recording of evidence. The learned counsel placed reliance on .The State v. Rashid Ahmad and another (1988 SCM R 1129).
6. It was further submitted on behalf of the respondent that he was in fact the husband of Mst.
Nargas complainant and had contracted this marriage with the consent and the blessings of the parents of Mst. Nargas and that it was on account of non-payment of certain agreed amount of money that the respondent's prosecution had been commenced. The accused-respondent, however, stated that although his marriage with Mst. Nargas had been solemnized yet the Rukhsati had not taken place. He has also stated that he has now filed a suit for restitution of conjugal rights against Mst. Nargas which is pending trial before the learned Judge, Family Court at Vehari.
7. On my inquiry the respondent-accused stated that Mst. Nargas is his second wife and he already had a wife and a child which marriage of his with his first wife still subsisted. He states that he is not equipped with the permission which is required for contracting a second marriage in accordance with the Muslim Family Laws Ordinance, 1961. He further submitted that his Nikah with Mst. Nargas complainant had not been reduced into writing nor had the same been registered as required by law. Further stated that he is employee as a constable in the police department.
8. Inspite of the fact that the respondent is police constable yet there is no document which could even prima facie establish either that he had obtained the requisite permission under the law to contract a second marriage or that he was the husband of Mst. Nargas complainant. In the circumstances this claim of the respondent, at least prima facie, is difficult to accept.
9. The delay in lodging the F.I.R. Appears to be not of much consequence as the local police had refused to oblige the complainant with the registration of the case, perhaps on account of the connection of the respondent with the police department and that it was through an order of the Illaqa Magistrate that the F.I.R. Was ultimately registered at the local police station. In these circumstances nothing really would hinge in the delay in the registration of the case.
10. The learned Addl. Sessions Judge had allowed bail to the respondent also for the reason the report of the Chemical Examiner was still awaited. The order of the learned A.S.J. Was passed on 12- 9-1988 and the report of the Chemical Examiner according to which the vaginal swabs of the complainant were found to be stained with semen, was ready on 21-8-1988 and it is unfortunate that it took a long time in the pipeline and was not placed before the learned A.S.J. On the day when the respondent-accused was released on bail. According to the complainant's learned counsel the possibility of the report having been withheld from the Court and detained elsewhere only to show favour to the respondent-accused by his colleagues in the police department, could not be ruled out. In any case, the report from the Chemical Examiner is now on record and is positive.
11. The fact that no injuries or marks of violence were found on the person of the prosecutrix so long as the respondent does not disown his connection with her, may not constitute an offence of Zina- bil-Jabar, yet the offence crystalised is still one which is covered by the prohibitory clause of section 497 Cr.P.C. Needless to say that even the punishment for Zina is up to ten years R.I. Plus whipping numbering 30 stripes in addition to the fine which could be imposed on the convict. The learned counsel for the respondent submitted that if it was a case of Zina then the complainant should also have been prosecuted. In case it is not a case of Zina-bil-Jabar but a Zina simpliciter, the mere fact that the female has not been prosecuted would not by itself be sufficient to absolve or exonerate the male of the offence committed by him.
12. As has been noticed above, the respondent-accused is a constable in the police department whose job in any civilized society would be to protect and not to robe the honour, the respect, the peace and lives of the individuals. Mst. Nargas was a young unmarried girl. Without the permission from either his first wife or the Chairman of the Union Council the petitioner cannot contract second marriage. He is not a teenager and the society expects a better conduct and behaviour from a married man than the one displayed by him.
13. Besides the merits of the case even the conduct of the respondent---accused was not such which could entitle him to any relief in equity or in discretion. The respondent in the circumstances deserves no leniency till he can prove his innocence before a Court of law and in these circumstances mere fixation of trial for evidence would be no impediment for the cancellation of bail allowed to the respondent. In any case, one can take judicial notice of the fact that even after a case is fixed for trial, there is no likelihood of an early conclusion of the same. It has also to be noticed that this petition was filed in December, 1988 and it was mainly on account of the respondent that the same could not be decided earlier. The respondent cannot be permitted to reap the benefit of his own follies.
14 In view of what has been stated above, the bail allowed to the respondent-accused vide order dated 12-9-1988 of the learned A.S.J. Vehari is recalled. He is present in person. He shall be taken into custody forthwith.
15. As a matter of caution, it may be clarified that nothing observed or stated in this order should be taken as an expression of opinion at the trial.
S.A./N-301/L