On 2-5-1995 Mst. Gulnaz, a minor girl of 13/14 years of age, who hails from a poor family of village Poplin-da-Maira-cum-Khoi Nara, Police Station Khanpur was taking back her goats towards her home when she was stopped by Qadeer Hussain Shah alias Bhola Shah (respondent No,1) son of Pehlwan Shah. The respondent allegedly caught hold of her (the petitioner) from her breast, untied the string of her Shalwar, threw her on the ground and tried to molest her chastity by attempting to commit "Zina-bil-Jabr" with her. The lady fought back, resisted and raised hue and cry and thus narrowly escaped from the tragedy, on the timely arrival of the P.Ws., who were attracted to the spot. On the arrival of the P.Ws. Respondent No,1 decamped from the scene of occurrence.
2. Since the father of the petitioner was not at home therefore, the matter could not be reported immediately to the police and the same was reported on the arrival of the petitioner's father.
Accordingly F.I.R. No,122 was registered under section 354, P.P.C. Read with section 18 of the Offence of Zina (Enforcement of Hudood) Ordinance, 1979 in Police Station Khanpur on 5-5-1995.
3. Respondent No,1 was arrested and thus moved the Court of Ilaqa Magistrate (E.A.C.II) Haripur for granting him bail who by his order, dated 28-5-1995 refused to release him on bail.
4. Respondent No,1, thereafter, went to the Court of the Sessions Judge, Haripur for the redress of his grievance and the bail was sought on the following grounds:--
(a) that there was unexplained delay of about 3 days in lodging the report which prima facie suggests the possibility of concoction and fabrication;
(b) that the medico-legal report, in respect of the complainant, does not support the version of the complainant about the duration of the injury on her person as according to the F.I.R. The occurrence had taken place on 2-5-1995 whereas the complainant was medically examined on 5- 5-1995 at 3 p.m. And the Medical Officer opined that the injury on the person of the complainant was about 20 hours old and.
(c) that the petitioner was a student of 10th class and was less than 16 years of age and therefore, deserves to be granted the concession of bail under the first proviso of section 497, Cr.P.C.
5. The complainant's counsel argued, before the Sessions Judge, that the accused was directly charged in the F.I.R. For attempting to commit Zina-bilJabr with the complainant, that the medico- legal report supports the version of the complainant and the mere fact that the respondent No,1 was a minor would not give him a license to attempt Zina-bil-Jabr and then, on this ground, be released on bail.
6. The Sessions Judge after hearing the arguments of the learned counsel for the parties and examining the record minutely came to the following conclusion:-- "Without touching merits of the case in minute detail I am of the considered opinion that it is a case of further inquiry, to know whether accused-petitioner had in fact made attempt to commit Zina- bil-Jabr or he was still at the stage of preparation when was prevented by the prosecutrix and her witnesses. Moreover, it has rightly been pointed out by the learned counsel for the petitioner that the medico-legal report does not go with the allegations made in the F.I.R. Regarding the age of the injuries on the person of the complainant. Unexplained delay of 3 days in making the report is also a circumstance in favour of the petitioner. Petitioner is a student of 10th class and is also reported to be less than 18 years of age."
7. Accordingly he released respondent No,1 on bail on furnishing bail bonds in the sum of Rs,50,000 with two sureties, each in the like amount, to the satisfaction of the Ilaqa/Duty Magistrate.
8. The petitioner, not content with the order of the Sessions Judge, has assailed his findings before this Court and has prayed that the order of the Sessions Judge being arbitrary and perverse may be set aside and that the to respondent No,1 be recalled.
9. Sardar Mumtaz Alam, Advocate learned counsel for the petitioner, Mr. Muhammad Aslam Khan, Advocate learned counsel for the State and Mr. Adam Khan Jadoon, Advocate learned counsel for the accused present and heard. Record of the case perused with some degree of care.
10. It may be stated at the very outset that the present case is that of moral turpitude and the mere fact that respondent No,1 is less that 18 years of age would not be a ground to release him on bail under the first proviso of section 497, Cr.P.C. 10-A. There is no denying of the fact that so far nothing has been brought on record to show that the petitioner, a minor girl of 13/14 years of age, had any enmity or to charge respondent No,1 falsely, for attempting to molest her modesty without any rhyme or reason. The petitioner has charged respondent No,1 for physically assaulting her by catching hold of her from her breast, throwing her on the ground and then trying to commit Zina-bil-Jabr with her. The alleged action of respondent No,1 would, therefore, show his design to commit Zina-bil-Jabr with a minor girl of 13/14 years of age and as such he does not deserve to be released on bail in my considered opinion Beside this the contention of respondent's counsel that the petitioner had falsely implicated respondent No,1 in the present case does not hold any ground as no honorable lady, especially a minor girl, would falsely charge any person and thus bring a stigma of dishonor not only to herself but to her parents/brothers/sisters/family by lodging such a false report.
11. Needless to mention that the ground regarding the delay in lodging the report is also prima facie not tenable inasmuch as the delay in lodging the report, to my mind, has been reasonably explained. In this respect reliance may be placed on case reported in Mst. Nasreen v. Fayyaz Khan and others PLD 1991 SC 412 wherein it was held:-- "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 of 'further enquiry' 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.
12. To further support his arguments the learned counsel for the petitioner also placed reliance on the following two cases decided by his Lordships Mr. Justice Mian Muhammad Ajmal and Mr. Justice Mehboob Ali Khan respectively:--
(1) Criminal Miscellaneous No,162 of 1994, decided on 17-7-1994.
(2) Criminal Miscellaneous No,80 of 1995, decided on 12-9-1995.
13. From the facts of the case in hand it is quite apparent that the Sessions Judge while exercising his discretion in granting the concession of bail to respondent No,1 had not applied his mind properly as to whether it was a fit case for exercising his discretion in favor of respondent No,1 who, allegedly, tried to ruin the life of a minor girl of 13/14 years of age. Be that as it may, the fact remains that prima facie reasonable grounds do exist for believing that respondent No,1 is connected with the commission of the offence with which he has been charged and therefore, he was not entitled to be released on bail.
14. Accordingly the by the Sessions Judge to respondent No,1 is hereby recalled. The respondent is present in the Court and shall be taken into custody and sent to judicial lock-up at once. The prosecuting agency is however, directed to submit complete challah against him in the trial Court within a period of two months positively.
Bail cancelled.