' Case F.I.R. No,377 of 1995 was registered at Police Station Sadar Khanpur, District Rahimyar Khan under section 10(3) of the Offences of Zina (Enforcement of Hudood) Ordinance VII of 1979 on the statement of Muhammad Siddique on 3-10-1995 at 2-30 p.m.
2. According to the version as given in the F.I.R., Mst. Shahnaz, a minor daughter aged about eight years of Muhammad Siddique complainant was on her way home on 29-10-1995 at about 5-00 p.m., after having brought meals for her father, carrying a Kassi when she came across the accused Ijaz Hussain alias Jaju son of Hassan present at a watercourse in the area of village Nawan Arain, Ijaz Hussain snatched the Kassi from Shahnaz and threw the same in a cotton crop nearby. Shahnaz went to bring back the said Kassi. Ijaz Hussain followed her in the cotton crop and caught hold of her and started committing Zina-bil-Jabr with her. The hue and cry raised by Mst.
Shahnaz attracted the complainant and the P.Ws. Muhammad Akbar and Muhammad Ali, who were just at a distance of one acre from the scene of occurrence. They rushed to the place. Ijaz Hussain picked up his Shalwar which he had put off and fled away. Mst. Shahnaz was found bleeding; her clothes (Shalwar and Qameez) were also stained with blood and she was semi- conscious and in a state of shock. She was lifted home. The complainant also stated in the F.I.R.
That he was checked and restrained from going to the police station by the relatives of the accused who were influential persons. He could reach the police station only after finding an opportunity for the same, alongwith his minor daughter and her blood-stained clothes and the eye-witnesses.
3. It was on 12-11-1995 that Ijaz Hussain accused could be arrested. He was allowed post-arrest bail by the learned Additional Sessions Judge, Khanpur, on 14-3-1996.
4. Feeling aggrieved, the complainant has moved the present application under section 497(5), Cr.P.C. For cancellation of this bail.
5. It was stressed before the learned Additional Sessions Judge that the accused was innocent and had been involved in this case due to enmity. It was also claimed that the accused was a minor and his case, therefore, fell within the ambit of section 7 of the Offence of Zina (Enforcement of Hudood) Ordinance, 1979, and that his case was of further inquiry into his guilt.
6. It appears that a birth certificate produced by the accused wherein his date of birth was recorded as 23-12-1982 found favour with the learned Additional Sessions Judge and after observing that this birth certificate remained unchallenged and that on the day of occurrence the accused was below 14 years of age, learned Additional Sessions Judge agreed with the contention that the case against the accused fell under section 7 of the Ordinance which was punishable with the imprisonment for a term which could extend to five years or with fine or with both. The learned Additional Sessions Judge, therefore, came to the conclusion that the case of the accused did not fall within the prohibitory clause and grant of bail was, therefore, a rule and its refusal an exception.
7. I have today heard the learned counsel for the parties and have also very carefully gone through the material available on record.
8. It is really shocking to note that the learned Additional Sessions Judge did not consider it worthwhile to go through the medico-legal certificate of Ijaz Hussain accused before coming to the conclusion that the accused was a minor. The columns which are normally filled in on the information supplied by the person intended to be medically examined, were also not referred to by the learned Additional Sessions Judge. According to these columns, Ijaz Hussain son of Hasan aged 18 years, a male caste Jatt, a labourer resident of Nawan Arain, was examined by the doctor on 14-11-1995 at 1-50 p.m. The doctor found him a young man of 18 years. His endocrinal system was normal. All his sex glands were normally built and normal. According to the opinion of the doctor, there was nothing to suggest that he was impotent sexually and unable to perform the sexual act.
' A reference back to section 2 of the Ordinance shows that adult has been defined as under:--- ' Adult' means a person who has attained, being a male the age of 18 years or being a female the age of 16 years, or has attained puberty."
"Puberty", according to the ordinary dictionary meaning, is "the beginning of sexual maturity".
Keeping this definition in mind, one is left with no doubt that Ijaz Hussain respondent cannot be termed as a minor and seen in this context it is off the point that his case falls within the ambit of section 7 of the Ordinance. According to the medico-legal examination of Shahnaz, bloodstained discharge was seen all around the vagina and hymen was found torn. The doctor opined that the child was no more a virgin. The learned Additional Sessions Judge did not at all advert to this aspect of the case and proceeded to grant bail to the accused on totally flimsy grounds.
9. The respondent, who is present inside the Court room is, by his very looks, 17/18 years of age. The prosecution never had the opportunity to challenge the correctness of the age mentioned in the so-called birth certificate. The defence shall have to establish it on record that this copy of the birth entry is correct and that the entry regarding birth made in the relevant register is also genuine. The contention of the learned counsel for the respondent that the medical evidence cannot override evidence of birth certificate as laid down in Muhammad Anwar and others v. The State 1976 PCr.LJ 1325 cannot be of any avail to the defence unless the correctness of the entry in the birth register is established. Similarly, the law laid down in Nazir v. Amir Din and another 1971 SCM R 637 regarding cancellation of bail cannot come to the rescue of the accused. The petition in the said case for cancellation of bail moved before Sessions Judge on the ground that the accused was threatening prosecution witnesses and putting pressure on them not to depose against him, was dismissed.
High Court in revision against order of Sessions Judge, relying on a new material and allegation of new threats, cancelled bail. It was held by the Supreme Court that High Court was acting in revision under section 439, Cr.P.C. And not in exercise of its jurisdiction under section 497(5), Cr.P.C. And as such High Court in the circumstances was not justified in bypassing order of Sessions Judge and cancelling bail on new grounds, set out in revision petition. It was also observed that proper course was to approach Sessions Court afresh for cancellation of bail on new grounds. This judgment has no bearing whatsoever on the facts of the present case.
10. In Naqi Hussain Shah v. The State 1992 PCr.LJ 1401, it was observed that "no respectable or even a person of lowly status in our society would coin up the sort of case unless there is inveterate enmity of the girl or her family is extremely depraved". The story regarding enmity between the two families is to the effect that Rab Nawaz, a brother of the complainant and uncle of the victim, got a false case, regarding burning of his wagon, registered against father of the accused, his uncle and his grandfather and this case was found false and the accused discharged, whereafter the grandfather of the accused filed a suit for damages against Rab Nawaz which was decreed to the tune of Rs, 20,000 and it was to avoid the payment of the said amount that Ijaz Hussain/accused respondent was falsely involved. I am not at all inclined to believe at this stage without there being any evidence to suggest otherwise that this could be a motive for false implication of Ijaz Hussain, accused-respondent. A girl aged hardly 8/10 years is no longer virgin and there is nothing on record to suggest, nor can a man of ordinary prudence believe that the complainant would spare the actual culprits and would falsely involve Ijaz Hussain.
' In Bilqees Bibi v. Dolat Ali alias Dola and The State 1994 PCr.LJ 1858 in which only an attempt to commit rape was made on the victim, it was held that the facts given in the F.I.R., prima facie, made out a case under section 18 of the Offence of Zina (Enforcement of Hudood) Ordinance, 1979, and the view formed by the Additional Sessions Judge that it fell within ambit of section 354, P.P.C.
Was not correct. After observing that the bail had been allowed on incorrect facts and faulty appreciation of the contents of the F.I.R., the was set aside and the accused was ordered to be taken into custody.
' In Musarrat Bibi v. Liaqat Ali and another 1990 PCr.LJ 1570 where prosecutrix was an unmarried girl of 14 years and no motive or against the accused was pointed out, it was held that Sessions Judge, while granting bail, did not discuss the evidence of the witnesses who fully supported the prosecution version and as the offence fell within the prohibitory clause, the bail was cancelled.
Similarly, in Mst. Gul Naz v. Qadeer Hussain and another 1996 PCr.LJ 524 where the victim, a minor girl of 13/14 years of age hailing from a very poor family, was allegedly caught hold of by the accused from her breast and then after untying the string of her Shalwar by throwing her on the ground he tried to molest her chastity by attempting to commit Zina-Bil-Jabr with her, it was held that the accused did not deserve to be released on bail. The contention that the petitioner had falsely been implicated did not impress the Court and it was observed that no honourable lady, especially a minor girl, would falsely charge any person and thus bring a stigma of dishonour not only to herself but to her parents/brothers/sisters/family by lodging such a false report.
11. In the instant case also, it is abundantly clear that the learned Additional Sessions Judge rushed to grant bail to the accused without proper application of his mind as to whether it was a fit case for exercising his discretion in his favour, who allegedly tried to ruin the life of a minor girl aged hardly 8/10 years. Prima facie, reasonable grounds do exist- for believing that respondent is connected with the commission of the offence falling within the prohibitory clause and was, therefore, not entitled to the concession of bail.
12. The result is that this application is accepted and the passed by the learned Additional Sessions Judge is set aside. The respondent be taken into custody and sent to the judicial lock-up forthwith.
13. Needless to say that the observations made in this order shall not adversely affect the trial.
Bail cancelled.