1. ' The applicant Aminul Haque son of Ghulam Akbar is facing trial for having committed an offence under section 10(3) of the Offence of Zina (Enforcement of Hudood) Ordinance, 1979 registered at Police Station Chakiwara, vide F.I.R. Crime No,10 of 1992. The applicant had applied for bail before the learned Sessions Judge, South Karachi, but the same was rejected vide order dated 11-8-1993, as such the applicant has preferred the present bail application.
2. ' The report was lodged by the complainant Hidayatul Haq on 16-8-1992 in which he stated that he was residing within the premises of Muhammadi Masjid Quarters, Tughlaq Line, Chakiwara, Karachi and is the Pesh Imam of the said Muhammadi Masjid. His cousin Aminuddin is Pesh Imam in Qadri Masjid, situated in Gulistan Colony where he also teaches the children who come to the Madersah of the said mosque. The complainant's daughter namely Amina aged 10/11 years and his son Samiul Haq aged 9 years, his other son Mehboobul Haq aged 8 years all are getting their education in the said Madersah. Younger brother of Aminuddin namely, Aminul Haque used to come to the said mosque on Thursday and on other holidays, on which days he also started teaching the children. On one night of a Saturday, the complainant's wife informed him that their daughter Amina has alleged that the said Aminul Haque has raped her weekly 2/3 times and that she had been feeling a lot of pain while passing urine. Thereafter the complainant went and lodged the report.
3. ' The case was investigated by the police in the course of which the applicant was arrested and challaned. On behalf of the applicant, bail application was moved before the trial Court and it was rejected vide order dated 21-1-1993. As against the said order, Criminal Bail Application No,161 of 1993 was filed before this Court but the same was rejected as not pressed by my learned brother Muhammad Aslam Arain, J, vide his order dated 14-3-1993. Under the said order, a direction was given to the trial Court to examine the complainant and Medical Officer within a period of three months, whereafter the applicant was at liberty to repeat the bail application if so advised. After the prosecution examined P.W.1 Mst. Zakia, P.W.2 Prosecutrix baby Amina and P.W.3 Mst. Rukhsana the mother of the victim, another bail application had been filed on behalf of the applicant which has been rejected under the impugned order dated 11-8-1993. It may be mentioned when this bail application came up before my learned brother Muhammad Aslam Arain, J, on 30-11-1993 it was ordered that this matter should not be fixed before him. Thereafter this matter was heard by me on 12-12-1993.
4. ' I have heard the learned counsel for the applicant Mr. Abdul Aziz Khan Khilji and Mr. Fareed Ahmed Dayo, learned counsel for the State.
5. ' The learned counsel for the applicant submitted that there was delay of one month in the lodging of the F.I.R. There was no evidence to corroborate the statement of victim. That the place of incident is an open hall and there is no possibility of committing Zina. That there was no independent witness; that P.W. Mst. Zakia has not supported the case. That there are contradictions by the witnesses between their Court statement and their statement under sections 161 and 164, Cr.P.C.
6. That the time of incident is not confirmed and that the applicant has been implicated on account of enmity over land dispute at Manschra.
7. ' On the other hand Mr. Fareed Ahmed Dayo, learned counsel for the State opposed this bail application, on the ground that at the time of filing of the previous Bail Application No,161 of 1993 before this Court, all these grounds were available but the bail application was not pressed. He submits that it is now a settled law that if at the time of filing of the previous bail application, if grounds are available and are either not taken or not pressed, the same ground cannot be agitated in the subsequent bail application and in this regard he has relied on the case of Zubair v.
8. The State PLD 1986 SC 173.
9. ' I have considered the points raised by the learned counsel and I have also gone through the material available on record. The direction contained in the previous bail application (161/93) was that the complainant and the Medical Officer be examined. The learned trial Judge has given cogent reasons in the bail order as to why the complainant and the medical officer could not be examined. The date wise explanation/reasons given by the trial Court are plausible. It will thus appear that the bail application was repeated before the trial Court in violation of the directions given by this Court.
10. ' Apart from it, all the aforesaid grounds which have been taken in the present bail application, the same grounds were available to the applicant but the bail application was not pressed before this Court. As such in the subsequent bail application, the same ground cannot be reagitated as held by the Supreme Court in the case of Zubair v. The State. Two other grounds namely; there are contradictions in the evidence of the witnesses between their Court statements and the statements recorded under sections 161 and 164, Cr.P.C., suffice to say that the contradictions will be treated as contradiction after the same are proved through Investigating Officer which stage has not yet reached before the trial Court as Investigating Officer has not been examined so far.
11. The other ground that there was enmity over land dispute at Mansehra, some documents have been filed with this bail application but this ground was never taken up before the lower Court nor any such document was filed in the lower Court. It may be mentioned that P.W. Mst. Zakia has not supported the prosecution case, but this is understandable, as the applicant is real brother of her husband. So far as the victim girl Amina is concerned she has fully implicated the applicant in her deposition and has also corroborated the fact that she had disclosed the commission of the offence to her mother and had A also disclosed the same to her father when he enquired from her.
12. P.W. Mst. Rukhsana is the mother of the victim girl and she has supported the prosecution case. I may also observe that as the trial is in progress, it will not be proper to make a greater comment on the merits of the case, as it might prejudice the case of either side. Suffice to say that prima facie the applicant appears to be connected with the commission of this offence. I may also observe that a large number of reported cases have been relied upon by the learned counsel for the applicant but the same have no bearing to the facts and circumstances of the case and are therefore, distinguishable.
13. ' In view of my above discussion, I do not find any merits in this bail application and the same is accordingly dismissed.