1. ' The applicant/accused is facing trial under section 10(3), Zina (Enforcement of Hudood)
2. Ordinance, 1979 under F.I.R. No,93 of 1996, Police Station Sukhan, Malir Karachi.
3. ' The facts of the case are that the complainant Nabi Bux sent a written complaint to S.S.P. Malir alleging therein that he is father of four daughters, out of whom his one daughter namely Rubina was subjected to Zina-bil-Jabr by applicant/accused Jumma due to which she became pregnant.
4. The complainant for this reason got her married with the applicant/accused but the said accused even after this marriage subjected his another daughter to illicit intercourse due to which she also became pregnant. He also kept an evil eye over his two other daughters. As he is a diabetic and paralysis patient, he cannot do anything against the applicant/accused. This application of the complainant was incorporated in F.I.R. On 31-10-1996 by Sukhan Police Station who conducted the investigation, during the course of which they came to know that the second daughter of the complainant had given birth to an illegitimate child, who however, expired subsequently.
5. I have heard the learned counsel appearing for the applicant/accused, who argued that there is no evidence of the offence of Zina having been committed by the applicant/accused and the two daughters of the complainant have not corroborated the statement of the complainant. He further argued that the 4th daughter of complainant namely Rubina had not supported the prosecution story. The wife of the accused/applicant namely Rubina has filed an affidavit in Court today denying the allegations made by the complainant in the F . I . R .
6. ' The learned State Counsel submitted that this affidavit at this stage has no value and that Mst.
7. Rubina who is wife of the accused is an interested witness even otherwise the facts stated in the affidavit can be testified by her as a witness during the trial of the case. Further the learned counsel for the State referred to the statement of the other two daughters of the complainant recorded under section 161, Cr.P.C. Wherein both of them have specifically implicated the accused/applicant.
8. The learned State Counsel further argued that on behalf of the applicant/accused previously also an application for bail was moved which was dismissed by the Sessions Judge by order, dated 21- 12-1996 which order was not challenged before this Court. He further argued that the second bail application filed by the applicant/accused before the Sessions Judge, contained the grounds which were available to him at the time when the first bail application was filed.
9. ' The learned State Counsel has relied upon The State v. Zubair and 4 others PLD 1986 SC 173 wherein the Lordships of the Supreme Court in para. 8 of the report observed that:-- "It might be useful to mention here that the second or the subsequent bail application to the same Court shall lie only on a fresh ground namely a ground which did not exist at the time when the first application was made. If a ground was available to the accused at the time when the first was filed and was not taken or was not pressed, it cannot be considered as a fresh and made the basis of any subsequent bail application."
10. ' The order, dated 11-3-1997 passed by the Sessions Judge dismissing the second bail application clearly mentions that the grounds raised by the learned defence counsel in this bail application were discussed and rejected by him.
11. ' Considering from both the angles that if the grounds were raised and rejected and/or those grounds were not taken which grounds were available at the time of first bail application, the same cannot be made the basis of this subsequent bail application.
12. In the present case the applicant/accused has been clearly implicated by the two other daughters of the complainant and that it is also on record that one of the daughter namely Mst. Noor Jehan had given birth to an illegitimate child due to Zina-bil-Jabr committed upon her by the accused.
13. ' In view of the above discussion I do not see any merits in this bail application which is accordingly dismissed. However, I direct the trial Court to expedite the matter and to get the report of the Chemical Examiner at the earliest and try to dispose of the case within 6 months. The applicant if so advised may file a fresh bail application after the report of the Chemical Examiner is received.
14. Application stands dismissed.