' In this application the father of the complainant Mst. Hamida has sought cancellation of bail granted to accused-respondent No, 1 by the E.A.C.-III/MIC Mansehra vide his Order, dated 27-10- 1994 in Case F.I.R. No,190, dated 20-10-1994, under section 5/10 Offence of Zina (Enforcement of Hudood) Ordinance, 1979, Police Station Phulra Mansehra. The petitioner applied for cancellation of bail before the learned Additional Sessions Judge, Mansehra, who rejected the application vide his order dated 20-11-1994.
2. The facts as reflected from the F.I.R. No,190, dated 20-10-1994 mentioned above lodged by Mst.
Hamida are, that her mother had died 5/6 years ago and her brothers are in Karachi for earning their livelihood; that during the last Ramzan when she was alone at her house, Maulvi Miskeen came there and forcibly committed Zina with her and thereafter from time to time repeatedly committed Zina with her due to which she became pregnant of about 8 months; that due to fear she could not disclose the matter to anybody. Maulvi Miskeen gave her Rs,5,000 for abortion, which she gave to Farooq, her brother-in-law and narrated him the happenings.
3. Learned counsel for the petitioner contended that respondent No,1 was directly charged for committing Zina-bil-Jabr with Mst. Hamida, the first of which was committed in the month of Ramzan and thereafter the offence was repeatedly committed due to which she conceived and became pregnant. He submitted that there was no ill-will or enmity against the accused and thus there was no question of false implication of the accused. He questioned the vires of the orders and submitted that the accused was allowed bail by the Magistrate on extraneous considerations which were not available on the record. The statements of the certain persons of the area with regard to the innocence of the accused, have no legal value as they were not witnesses of the crime. As such the bail order being injudicious deserves to be recalled.
4. On the other hand learned counsel for the accused-respondent while defending the bail order submitted that Mst. Hamida being the co-accused in the case, her report cannot be attached undue credence. He urged that her conduct also showed that she was willing party to the offence as she kept mum for more than 8 months. The delay coupled with her participation in the crime makes the case of the present accused to be of further inquiry. He submitted that as the privilege of bail has not been misused or abused, therefore, the bail order does not warrant interference by this Court.
5. Learned State counsel supported the bail order and submitted that in view of the statements of the locals, he would oppose cancellation application.
6. After hearing the learned counsel for the parties and going through the record of the case, I do not find the bail granting order to be either judicious or proper. The grounds on which the Magistrate allowed him bail were that there was no other evidence except that of the victim, who was co-accused; and that the accused was not medically examined to ascertain whether he could impregnate her; and that accused did not confess his guilt despite 3 days police custody; and that 50 persons of the village attended his Court and gave an affidavit that accused was their Imam Masjid and was innocent. None of the aforesaid grounds could be pressed into service nor should they have been considered sufficient by the two Courts below for allowing bail being a case of further inquiry as subsection (2) of section 497, Cr.P.C. Provides:-- "If it appears to such officer or Court at any stage of the investigation, inquiry or trial, as the case may be, that there are no reasonable grounds for believing that the accused has committed a non-bailable offence, but that there are sufficient ground for further inquiry into his guilt, the accused shall, pending such inquiry, be released on bail, or, at the discretion of such officer or Court, on the execution by him of a bond without sureties for his appearance as hereinafter provided."
' The bare reading of the above would manifest that during investigation, inquiry or trial if it appears to the Police Officer or the Court that there are no reasonable grounds to believe that the accused has committed non-bailable offence and there are sufficient grounds for further inquiry, he shall be released on bail. This provision came under consideration before the Supreme Court of Pakistan in case (i) Arbab Ali v. Khamiso and others 1985 SCM R 195 and (ii) Abrahim v. Hayat Gul and others 1985 SCM R 382. In case reported as 1985 SCM R 195 the learned Supreme Court ruled as under:- "There are certain other features also in this case which have not been attended in the High Court before giving a verdict that it was a case of further inquiry. It needs to be clarified that bail can be allowed (in a case otherwise allegedly falling under the prohibition contained in subsection (1) of section 497 under subsection (2) of section 497, Cr.P.C. When there are sufficient grounds for further inquiry into the guilt of the accused but only on the condition when the Police Officer or the Court at any stage of investigation, inquiry or trial, as the case may be, comes to a definite conclusion that there are no reasonable grounds for believing that the accused has committed a non-bailable offence. Without this finding bail cannot be allowed under subsection (2) on mere ground that there are sufficient grounds for further inquiry. This aspect of the relevant law has also not been brought to the notice of the learned Judge of the High Court."
' Whereas in case reported in 1985 SCM R 382 it was observed as follows:-- "This provision does not leave it to the discretion of the Court to withhold bail to a person accused of a non-bailable offence. It has to be allowed to him as of right under this provision if an important prior condition is fulfilled, namely, that the officer incharge of police station or the Court taking cognizance of the matter comes to a definite conclusion on consideration of the entire material that there are no reasonable grounds for believing that the accused has committed a non- bailable offence. Without such finding by such Officer or the Court the accused would not be released on ground of further inquiry under subsection (2). And similarly if such a finding is recorded the accused cannot be denied the right of bail granted to him by the same provision. In the present case neither the officer nor the Court concerned recorded the prerequisite finding. That being so the respondent could not be released on bail on ground of so-called further inquiry under subsection (2) of section 497, Cr.P.C."
As there is no finding either of the Police Officer or that of the Court that there are no reasonable ground for believing that the accused if committed a non-bailable offence, in such circumstances Court could not release the accused on bail on the ground Of further inquiry under subsection (2) of section 497, Cr.P.C.
7. The victim, an unmarried girl, has directly charged the accused respondent for committing Zina with her from time to time and resultantly impregnating her. In such an offence none else can be a better witness than the victim/prosecutrix herself. She belongs to male dominated poor rural society where the men have all the choice but women have none at all. Their complete dependency have made them so weak and miserable that they cannot even raise their voice against any wrong towards them. Their helplessness can be adjudged from their subservient character given to them in a society which they have accepted as their fate and cannot even blame for the aggressions and atrocities committed upon them. She nourished the sin of the accused respondent in her womb for eight long months but could not dare to name the sinner and when it became visible, he gave her Rs,5,000 to get it aborted, which she handed over to her brother-in-law, the accused cousin, due to which relationship he had an access to her house which he exploited to its highest degree under the garb of his Moulviship. The charge against the accused by the victim appears to be bona fide and coincidence inspiring as she had no motive to falsely implicate him for such an offence. In almost similar circumstances, the august Supreme Court of Pakistan, in case of Mst. Nasreen v. Fayyaz Khan reported in PLD 1991 SC 412 observed as follows:-- "There are two elements in the case which have pronouncedly been taken note of by the High Court. One, that the complainant/ prosecutrix's testimony alone against the accused in a case of Zina would not be enough to deny the concession of bail as it would not be enough for conviction.
And secondly, that there was unexplained delay of about 2/3 months in the lodging of the F.I.R.
Accordingly, it was treated as a case for further inquiry and the respondent was allowed bail. Prima facie, none of the two main grounds already noticed were available to the accused at the bail stage. This Court has in a large number of cases arising out of convictions under section 10 of the Offence of Zina (Enforcement of Hudood) Ordinance, 1979 considered the sole testimony of victim as enough for conviction in case it inspires confidence. The second ground regarding delay is also, prima facie, not tenable because it was not unexplained delay. The victim's husband being insane was in a jail. He was not available to impregnate her. Obviously the pregnancy mentioned in the F.I.R. Had resulted out of third party copulation. There was enough reason for the prosecutrix to keep quiet on the direction and threats of the accused but when after few months the circumstantial evidence of Zina started showing itself, she divulged the secret to her mother. There is no need to probe this question any further at this stage. The, prima facie, explanation for delay being on record, the learned Judge in the High Court seems to have ignored or misread it. Lastly, the question of prima facie, opinion about the guilt of the accused under subsection (1) of section 497, Cr.P.C. Or subsection (2) thereof has not been properly examined in the impugned order. The easy contrivance of the 'further inquiry' against positive rulings of this Court explaining the provisions of section 497(2), Cr.P.C. Was pressed into service. It has been observed time and again that there would hardly be a case which would not require 'further inquiry', therefore, this element by itself is no ground for granting bail under subsection (2) of section 497, Cr.P.C. Such orders are on the very face illegal which do not fulfill the second condition regarding tentative opinion about the prima facie, guilt or otherwise of the accused.
' The learned Judge while exercising discretion, it is to be further remarked, did not apply mind; whether, it was a fit case for exercise of discretion in favour, allegedly of a person who ruined the life of a young girl, impregnated her with an illegitimate child, and we have been told by the grandfather of the victim that she died, according to his accusation, on account of this case."
So far general statement/affidavits of certain villagers with regard to innocence of the accused is concerned, they are only presumptive in nature as they had no direct and first hand knowledge of the repeated crime of rape with the victim and could not state as to who impregnated the complainant. On the contrary accused has been directly charged by the victim for impregnating her which is duly supported by medical evidence. Accused was also medically examined on 23-10- 1994 and was found capable of committing rape by the doctor.
8. Since there is a strong prima facie case against the accused respondent and the bail order being illegal and injudicious on the face of it, therefore, I accept this application for cancellation of a bail, recall/cancel the bail granted to him. He is present in Court, taken into custody and committed to judicial lock-up.
9. The above arc the reasons for the short order, dated 17-5-1995.