' This is a bail application filed by Muhammad Saleem alias Seema who is charged under section 5/10 of Ordinance VII of 1979 read with section 329, P.P.C. Vide F.I.R. No,150 dated 12-4-1998 of Police Station Khalabat Township Haripur. He is refused bail by the forums below.
2. Masood Ali, A.S.-I. Police Post Swabi Maira, on 12-4-1998 at 7-00 hours was on round of the area when at Gandaf one Akram postman of Swabi Maira informed him that a newly born baby girl is found abandoned in lands known as Namibian within the limits of village Malinger. The A.S.-I.
Reached the spot and found the baby suspended between life and death. A young girl named Mst.
Shamim Bibi was standing nearby but seeing the police she started running towards the village.
She was apprehended and medically examined, wherefrom she gave the indications of having given birth to a child.
3. Apprehended on 12-4-1998, she was produced before the Magistrate on 13-4-1998 where she is said to have had confessed her guilt and stated that about 8/9 months back she was subjected to rape by the present petitioner Muhammad Saleem alias Seema. That she kept quiet under the threat to her life and serious damage to the family honor.
4. Learned counsel for the petitioner assailed the confessional statement on the ground firstly that it was not exculpatory and secondly that it had been backed out by the girl through a subsequent similar statement before the Magistrate on 21-5-1998; changing her version and charging three different persons namely Malak Daud, Haji Riaz and Gul Shehzad for the commission of rape. It is a novel situation where confessional statements under section 364, Cr.P.C. Are recorded whenever it is convenient to anyone. This procedure remains yet to be justified at trial. For the present stage, I believe that the immediate version after arrest and the first confessional statement, dated 13-4- 1998 should be considered to be one under section 364, Cr.P.C. And also to be one which is genuine for the present stage. Let the remaining controversies be settled at trial.
5. The learned counsel further alleged on the strength of my own judgment in 1998 MLD page 1195, PLD 1996 Lah. 295, 1987 PCr.LJ page 980 and 1992 PCr.LJ page 242 that the confessional statement in hand, so far as the petitioner is concerned, is a statement of the co-accused which might be likely to be used against the co-accused under Article 43 of Qanoon-e-Shahadat Order, only, when it is proved at trial and that as the trial stage has not yet come, the petitioner in view of the aforesaid rulings be released on bail. The argument appears to be logical at the first expression but I really feel confronted in my mind with altogether different approach to the present case. It may be kept in mind that the present confession, dated 13-4-1998, as such, is an exculpatory confession where the girl Mst. Shamim Bibi claimed to be a victim of rape. Such exculpatory statement does not amount to a confession in the legal sense of the term at the first place but remains at the same time a statement of a person before a Magistrate. Let it be left to be decided at the trial as to how the prosecution would wriggle out of this statement which at the face of it and from the day one is and has been exculpatory.
6. The second dynamic aspect is that in normal crimes if it is held that a certain confessional statement is exculpatory, it can be thrown out of consideration as being no confessional statement at all but in the instant case it cannot be ignored in the above manner because in a crime of sex the deponent happens to be a victim as well. If it cannot be dubbed as a confessional statement, what is the harm in treating it as a statement of victim and that too for the present stage. I would, therefore, take such statement of Mst. Shamim Bibi to be statement of victim for the present stage and would observe that it was delayed not because of any calculation but because of threat and also of the involvement of family honor. There is nothing on record to give an indication that the girl had motive to falsely implicate the present petitioner. To appreciate the matter in the light of subsequent statement dated 21-5-1998 would not at all be proper because many things can happen during the prolonged period of 38 days.
7. The learned counsel for the petitioner assailed the confessional statement of Mst. Shamim Bibi from another angle as well, to the effect, that in the statement she alleged that the rape was committed upon her 8 or 9 months prior to the statement whereas from the medical examination of the girl it transpired that the baby given birth to was only of 20 weeks i,e, 5 months and hence the possibility cannot be excluded that about 8/9 months before she must have been subjected to sexual intercourse by someone else. I am afraid, this argument is not at all genuine. In the medical examination the Lady Doctor has given the fundal height of the uterus to be of about 20 weeks. This was but obvious because the girl was being examined after the delivery and hence the fundal height of uterus had subsided to become equal to 20 weeks instead of matured height of 36 weeks.
The expression of 20 weeks in the medical report does not at all mean that the baby delivered was of 5 months. The babies of 5 months are not normally delivered unless there is a case of abortion or miscarriage whereas from the post-mortem examination of the baby it stands finally determined that it was a still born baby. The F.I.R., in view of postmortem, gives a contrary impression that the baby was alive at the time of recovery. Still babies are never alive and if at all alive, it be considered of mature age.
8. What I want to bring home is that the expression fundal height being of 20 weeks during examination after delivery does never mean that the baby was of 20 weeks. How could the age of a delivered baby be determined from the fundal height measured about one day after the delivery. I hold that at least for the present stage the expression about commission of Zina 8/9 months before the statement does not stand controverted by the medical report of the girl. She has with utmost promptitude involved the present petitioner without any apparent motive for false charge and, hence, he is, prima facie, linked with the commission of offence that falls within the prohibitory clause if section 497, Cr.P.C. The rulings relied upon by the learned counsel pertain mostly to cases not involving the co-accused which was likely to be the victim as well. Only 1987 PCr.LJ page 980 involved the circumstances where Zina was committed but from the plain reading of the short ruling aforesaid it appears that the girl therein had made an exculpatory confession about Zina whereas the one before me is exculpatory. The bail application is rejected.