Amidst the proceedings of Criminal Misc. 1773-B-89 (Mst. Fakhran vs. State), it transpired that the respondent, principal accused in the case registered vide F.I.R. No. 214 dated 29-6-1988 under sections 10 and 11 of Offence of Zina (Enforcement of Hudood) Ordinance, 1979 read with section 109 P.P.C. At Police Station Ghalla Mandi. C-Division, Sahiwal, has been enlarged on bail by learned Sessions Judge, Sahiwal on 18-3-1989, on the ground that he has been exonerated by the prosecutrix Mst. Rani and her mother despite of the fact that she had vouched the prosecution story in her statement recorded a/s 164 of the Cr. P.C. Before the Illaqa Magistrate; whereupon suo motu notice for cancellation of bail was issued. The prosecutrix was also summoned but she failed to turn up on account of ailment. Suspecting that the respondent might have been instrumental to the same, local police was directed to arrange her presence; pursuance whereto on the next date of hearing, complainant's counsel put in appearance and submitted that she is confined in District Headquarter Hospital, Bahawalnagar and is not in a fit condition to travel; with a view to verifying the factual situation, Mr. Farooq Bedar, learned Additional Advocate-General was sent for, and was directed to gather information from Medical Superintendent of the District Hospital over the telephone, who affirmed that she has been hospitalized since 1-7-1989, complaining lumbage, scitica, severe backace and pain radiating towards posterior aspect of left thigh. It was also revealed that at the time of admission she was brought on a strature since she was not in a position to stand up and according to tentative opinion of the Medical Superintendent, the ailment/disablement could be because of rape. It was further reported that if she normally reacts to the treatment, she would require about 6 weeks for recovery; consequently, the case was adjourned for today.
2. The prosecutrix virtually being lifted by her mother has been brought in, since she does not appear to be in a fit physical condition to stand up on her own or to move about. She was half bent and was dragging her left leg. She was offered a chair, on which she could not even sit by herself; consequently, her mother helped her out where she positioned the left leg by lifting it with both of her hands and placed at a relatively tolerable posture. She appeared to be in extreme distress and misery, out of agony and probably humiliation she was in tears and had nearly fainted, however, after taking water she composed herself but kept on sobbing. There were visible signs of severe pain and suffering which she was going through. Upon query, reaffirming the prosecution version as divulged in the F.I.R. (and reiterated in her statement u/s 164 of Cr. P.C. Before the Magistrate) she submitted that her entire family was cruelly harassed by the respondent, and under threats of kidnapping and elimination the so-called exonerating statement before the Sessions Court was extracted out of her and her mother under mental and physical coercion. Her mother while crying and trembling corroborated the stance, credence whereto is lent by the observation made by the learned Sessions Judge in his order dated 1-12-1988 which reads as under:--- "A girl has been produced. She is weeping and is nervous and not in a fit position to make statement. As I do not record her statement today, so now to come up for proper order on 21-12- 1988. The alleged victim appears to be seriously ill. I direct that the parents should get her medically examined and produce her medical fitness certificate issued by M.S. DHQ Hospital, Sahiwal on the next date of hearing."
3. However, on the next date of hearing before the Sessions Court, it appears that the respondent having manoeuvred a physical fitness certificate, procured the exculpatory statement and with a view to making it doubly sure got her mother's statement also recorded exonerating him of the charge, whereupon he was bailed out.
4. Having observed the demeanour of the prosecutrix, and that of her mother, and the convincing veracity of their statements, learned counsel for the respondent was specially given the opportunity of asking any question that he might like to put to the prosecutrix, but he did not avail of the same, and argued that the alleged rape has not been witnessed by anybody and that the respondent has been exonerated by the prosecutrix before the Sessions Court.
5. On the other hand, learned counsel for the complainant and learned A.A.G. Stated that the respondent has been specifically ascribed the role of principal accused in the F.I.R., factum whereof was testified by the prosecutrix in her statement u/s 164 Cr.P.C. Before the Magistrate and has been categorically reaffirmed in these proceedings, that she has no motive to falsely implicate the accused persons.
6. Ncco rding to the prosecution, the prosecutrix, a minor girl of 13 years, who had come from Bahawalnagar to visit the complainant, her maternal uncle, on 29-6-1988 at about -5.30 p.m. While she was fetching a sewing machine from the neighbours, was intercepted by Mst. Fakhran, the respondent alongwith Muhammad Asif, Faiz Muhammad and Zulfiqar. She was dragged into the former's house and was taken upstairs, where Zulfiqar got hold of her hands, Fakhran plugged her mouth with Dopatta, the respondent stripped her naked and subjected her to rape, whereafter the vulturous exercise was repeated by the co---accused. Her shrieks attracted the complainant's brother Muhammad Ashraf and one Zulfiqar who went to her rescue, where they found the respondent and Zulfiqar naked, the prosecutrix was wrapped in blood on the bed, while Mst.
Fakhran was trying to pacify her and was administering her milk. Somehow, the respondent alongwtth the male co-accused under threats vanished away, for which the F.I.R. Was lodged with promptitute.
7. Having considered the arguments canvassed at the bar, in view of the specific role having been ascribed to the respondent, which was reiterated by the prosecutrix in statement under section 164 Cr. P.C. And reaffirmed in these proceedings, I am of the firm opinion that the prosecutrix was coerced to make the exculpatory statement before the Sessions Court during the bail proceedings which is an abuse of the process or the Court.
8. Prima facie, petitioner's case falls within the prohibition envisaged by section 497 (1) of the Cr.P.C.
Consequently, his bail is hereby cancelled.
9. Learned Assistant Advocate-General is directed to instruct the Medical Superintendent of District Headquarter Hospital, Bahawalnagar to attend to the prosecutrix and give her proper medical care and treatment. He should also get in touch with S.P.Bahawalnagar for arranging proper protection to the prosecutrix, lest any harm is done to her at the instance of the respondent.
10. Before parting, it is noted with concern that lately practice has developed specially in cases under Offence of Zina (Enforcement of Hudood) Ordinance 1979 and Prohibition (Enforcement of Hadd) Order. 1971) that the accused persons very conveniently procure exculpatory affidavits of complainants and/or prosecution witnesses on basis whereof initially bails are sought and subsequently are deployed at the trial, veracity and genuineness whereof needs proper scrutiny for effective and safe administration of justice.
S.A./S-572/L