' F .I.R. No,20 dated 7-1-1999 stands registered at Police Station Kotwali, Sialkot at the instance of Mst.
Faiza Butt under Articles .10/11 of the Offence of Zina (Enforcement of Hudood) Ordinance, 1979 with the allegation that Sh. Adnan Sheraz Sandal respondent-accused trespassed her house quietly through the stairs in the absence of her mother on 31-12-1998 at 7-00 p.m. He asked her to accompany her as her sister Mst. Saima and her relative Mst. Farida Bano were calling her. In the meanwhile, her mother arrived after about 5 minutes who had gone to fetch the breads. She was also asked in the matter and her mother told S. Adnan Sheraz Sandal that she (complainant) would not accompany him. On that he brought out a pistol and threatened her with dire consequences who informed her that he had brought some persons standing outside. She was forcibly taken outside and made to sit in the car. He took her to Gulshan Iqbal Park, Sialkot, and from there to his personal Farm within the area of Police`` Station Saddar, Sialkot. She was confined in a room while he himself went to another room. On guessing his intentions she jumped out from a window but two unknown persons took her in the room. The accused was under intoxication of liquor who forcibly removed her clothes and committed Zina-bil-Jabr thrice with her. She raised the alarm. At 2-00 a.m. At mid-night she was made to sit in the car who left her in her house. She was threatened in the way. On the next day i,e, on 1-1-1999 the accused arrived and threatened her that he would involve her in different cases through the police and Magistracy.
2. The investigation was set in motion. She was got medically examined on 7-1-1999 from the Woman. Medical Officer. The vaginal swabs were taken and the report dated 14-1-1997 of the Chemical Examiner has been found in the negative. The medical examination of the accused was conducted on 13-1-1999 who was found as potent. The statement of the mother of Mst. Faiza Butt was also recorded.
3. It is important to note that in terms of rule 25-10 of the Punjab Police Rules,1934 the S.H.O./Investigating Officer did not make the spot inspection of that place the Zina Bil Jabr is said to have been committed. In terms of rule 25.22 of the Punjab Police Rules, 1934 the written order of the Magistrate for medical examination of Mst. Faiza Butt was not procured. It is also noteworthy that after recording the complaint `under section 154 of the Code of Criminal Procedure, Mst. Faiza Butt was questioned in writing whose respective answers were incorporated in the case diary.
4. After his arrest on 11-1-1999 Adnan Sheraz Sandal respondent-accused was admitted to bail by the learned Sessions Judge, Sialkot on 15-1-1999 on the grounds that there is delay of seven days in reporting the matter to the police, that no hue and cry was made either by the complainant or her mother when the petitioner allegedly took away Mst. Faiza Butt on gun point; that the medical examination showed that Mst. Faiza Butt was a lady of easy virtue and that there was no eye- witness to support the allegation of Zina-bil-Jabr.
5. Feeling aggrieved Mst. Faiza Butt made an application before the learned Sessions Judge, Sialkot for cancellation of the bail on the grounds that she was being threatened. The S.H.O. Gave the report that the allegation was incorrect. The petition was dismissed. Consequently Mst. Faiza Butt has moved this application before this Court for the cancellation of the bail of Sh. Adnan Sheraz Sandal accused on facts.
6. I have heard the learned counsel for the parties as well as the learned State Counsel and gone through the record before me. The main contention of the learned counsel for the petitioner is that the haste has been shown by the learned Sessions Judge, in the matter of grant of bail to the accused-respondent. He added that it was with difficulty that the petitioner succeeded in reporting the matter to the police as the accused was an influential person; that in the circumstances of the matter when the petitioner was forcibly removed it cannot be expected that her mother could raise the hue and cry as she was threatened, that the medical examination of Mst. Faiza Butt had made out that her hymen was torn and that in the circumstances when the complainant was forcibly removed at his Farm by the accused who committed the Zina-bil-Jabr there in the room of his house it cannot be expected that any eye-witness could support her. He maintained that the statements of the victim and her mother as well as the medical examination have prima facie connected Sh. Adnan Sheraz Shandal accused with the occurrence.
7. On the contrary, the learned counsel for the respondent-accused laid the emphasis that the accused has been admitted to bail on valid grounds who has s not misused the concession of bail and that the discretion used by the learned Sessions Judge may not be interfered with. He adopted the reasoning made by the learned Sessions Judge in the impugned order. Learned State counsel supported the impugned judgment passed by the learned Sessions Judge. In my view, it was not a case for the acceptance of application moved by Sh. Adnan Sheraz Sandal respondent-accused.
In these days the delay regarding the registration of such type of cases is quite in rife and it is one of the conspicuous grievances of the citizens. The petitioner is a young lady who claims to be a student of Bachelor of Arts and is living with her mother. Her mother was all alone when she was allegedly removed forcibly by the respondent-accused. No motive has been brought to the notice of this Court to falsely involve the respondent-accused. The petitioner is a student and unmarried lady and in my view she would not opt to ruin her own life by levelling false allegation. The delay in reporting the matter to the police cannot be considered as a valid ground for the admission of the accused to bail. The evidence collected by the police has to be seen within the context of the occurrence. The accused is alleged to have forcibly removed Mst. Faiza Butt in his car to his Farm Horse and the occurrence is alleged to have been committed there where the presence of any witness to support the victim cannot b2 imagined. At this stage I have to refer to the medical examination of Mst. Faiza Butt. Her hymen was found as torn. It cannot be held by the stretch of any imagination that she is a lady of easy virtue. Rather before making such an allegation the Ordinance No,VIII of 1979 i,e, the Offence of Qazf (Enforcement of Hadd) Ordinance, 1979 shall have to be kept in mind according to which such type of allegation cannot be made by any person about a lady in routine and without proof. The police and the Courts should avoid making reference to the loose character of a female at random. The crux of the matter is that the medical examination conducted on the person of Mst. Faiza Butt has prima facie supported her version that sexual intercourse was committed with her. The accused was got medically examined and was found to be potent. It is note-worthy that the occurrence took place on the New Year Night and it is a pity that it was the Holy Month of Ramzan. In our social set-up it is becoming difficult these days for the destitute females to save their honour and respect and it is one of those cases wherein the petitioner has faced the ugly episode. The statement of the complainant recorded under section 154 of the Code of Criminal Procedure and the statement of her mother recorded aftenvards by the police stands corroborated by themedical evidence and it can safely be expressed that Sh. Adnan Sheraz Sandal is prima facie, liable under Article 10/11 of the Offence of Zina (Enforcement of Hudood) Ordinance, 1979. The discretion used by the learned Sessions Judge in favour of the accused is devoid of judicial propriety.
8. At this stage, I am tempted to express that the Investigating Officer has not proceeded in accordance with law. It is simply surprising that after recording the F.I.R. Under section 154 of the Code of Criminal Procedure, the complainant (victim) was put to the test in question and answer form by the Investigating Officer and it can safely be deduced that the same was done intentionally to damage the case of the prosecution. Such practice needs to be disapproved during these days when the law and order situation is worsening and the cases of moral turpitute are on the increase. The recording of the said statement of Mst. Faiza Butt afterwards shows that as if the Investigating Officer was holding the trial which definitely is not his jurisdiction and function.
After recording the statement of the' complainant under section 154 of the Code of Criminal Procedure, in case of submission of challan, it is during the trial that the cross-examination is conducted by the adverse party. The method of recording further statement of Mst. Faiza Butt complainant shows that the S.H.O. Had soft corner for the accused.
9. At this stage, I would reproduce as under Rule 25.10 and rule 25.22 from the Punjab Police Rules, 1934:--- "25.10 Immediate dispatch of an officer to the spot.---When a report of a cognizable case is recorded and it is decided not to dispense with investigation under section 157(b), Criminal Procedure Code, a police officer shall proceed to the scene immediately. The officer, who first proceeds to the spot shall, if he be not competent to complete the investigation, take all possible steps to preserve the scene of the crime from disturbance, to record particulars of and secure the presence of potential witnesses, obtain information relating to the case and arrest the culprit.
25.22. Medical examination of women.--- No examination by a medical officer of a living woman's person shall be made without her consent and without a written order from a Magistrate, addressed to the medical officer, directing him to make such examination.
' In all cases in which the police Consider such an examination to be necessary, the woman shall be taken before a Magistrate for orders. This rule shall also apply to similar examinations by 'Dhais' or any other persons.
' The word "person" applies only to those parts of the body, to expose which would violate a woman's modesty. Female Assistant or Sub-Assistant Surgeons in Government service shall only be required to do medico-legal work on behalf of Government when the woman or girl concerned refuses to be examined by a male doctor. When a female doctor is summoned by a Court she must attend. (Punjab Government endorsement No,558-M-36/9932, dated the 25th March, 1936)'."
10. The lapse and violation on the part of the Investigating Officer of the aforesaid Police Rules has also made out that female victim was not treated equitably. The aforesaid rules are that of much importance. The spot inspection of both the places after the case was registered would have further strengthened the prosecution case. Mr. Abdul Qayyum Deputy Superintendent of Police (Legal) has scrupulously expressed that the aforesaid type of lapse should have not occurred.
11 For what has been said above, I hold that there was no justification to admit Sh. Adnan Sheraz Sandal respondent-accused to bail. I, therefore, accept this petition, set-aside the impugned order dated 15-1-1999 and cancel the to the respondent-accused. He has been put under the custody of Riaz Ahmad, S.I./S.H.O., Police Station Kotwali, Sialkot for his detention in the judicial lock-up, District Jail, Sialkot with the direction of this Court to be produced before the learned Sessions Judge, Sialkot on 26-5-1999 and on every date to be fixed thereafter'.