' Rrecord received and perused. Arguments heard.
2. The petitioner is charged under sections 11 and 10(3) of Offence of Zina (Enforcement of Hudood)
Ordinance, 1979, vide F.I.R. No,267, dated 3-8-1998 at Police Station Musafarkhana. The F.I.R. Was lodged by Mst. Zarina Bibi (victim) who is an unmarried girl. She alleged in the F.I.R. That she was putting up with her parents in village Rokrani. Muhammad Iqbal is their neighbour. He had been requesting her parents for the hand of the victim (Mst. Zarina Bibi) for his son Sajid (petitioner) but her parents were reluctant. That on the intervening night of 2/3-8-1998 she (Mst. Zarina) was sleeping in the courtyard of her house alongwith her parents. At about 2-00 a.m. She went to the latrine and after urination when she returned to her bed she saw Sajid petitioner alongwith two unknown persons standing at the door of the latrine. One of them was holding a pistol in his hand.
She was stunned. They took her in their grip and forcibly removed her to the house of Iqbal where she was detained in a room. Inmates of the house were not present there. Sajid accused committed Zina-bil-Jabr with her in that room. Thereafter, the accused persons forced her to thumb-mark some blank papers. At about 8-00 a.m. Her uncle Allah Nawaz and her first cousin Abdul Rehman alongwith some other residents of the village reached the spot. On seeing them approaching the accused persons decamped. She narrated the whole occurrence to her maternal-uncle and reported the matter at Police Station Musafarkhana, where her statement was recorded.
5. Learned counsel for the petitioner has sought bail inter alia on the grounds; that a false case has been cooked up against the petitioner due to his father's long-standing enmity with the complainant; prosecution story is improbable and is not worthy of any credence; it is absolutely unthinkable that the petitioner would commit Zina with Mst. Zarina in the presence of his co- accused standing quite close to them holding a pistol in his hand; that the victim is a harlot which is evident from the medical report; Dr. Rubina Nahid who medically examined the victim has unambiguously stated that in her opinion there was no fresh sign of intercourse or force intercourse, however, vagina was used many time which leads to an irresistible conclusion that the victim was habitual to intercourse. She was, therefore, a woman of easy virtue and if she was unmarried then there is no doubt or dispute that she was a bad character. Learned counsel further contends that the solitary statement of the victim is hardly' sufficient to warrant the conviction of the accused unless it is corroborated by some independent source which is not forthcoming in this case; that the petitioner was minor and less than 14 years of age at the time of occurrence and is now confined in Borstal Jail, Bahawalpur for the last many months.
4. While opposing the bail petition Mr. M.A. Farazi, Advocate appearing on behalf of the State vehemently contended that the petitioner is named in the F.I.R.; he was previously known to the victim; his identity was, therefore, not in doubt. He committed Zina-bil-Jabr with Mst. Zarina which is punishable with 25 years' R.I. The offence falls within the prohibitory clause of section 497, Cr.P.C.; minority per se is not ground to admit the petitioner to bail; no enmity between the parties has been established during the investigation; even a pimp or procurer would not like to implicate even his arch enemy at the cost of the chastity of his daughter; state of lawlessness which prevails in the country and alarming rise in crime involving moral turpitude demands that the culprits should be dealt with strong hands; the petitioner's admission to bail at this stage would amount to encouraging rascals and rapists like the petitioner who would repeat this offence with impunity unless he is awarded deterrent punishment.
5. Having given my careful consideration to the arguments propounded by the learned counsel for the parties, I am satisfied that it is a fit case for bail. There are inherent infirmities in the prosecution case, trespassing of 3/4 persons into courtyard of the victim's house where her parents were also sleeping and her forcible removal from her house to the house of Iqbal, father of Sajid, petitioner appears to be a mystery. Even a shriek or cry of the victim was sufficient to alarm the inmates of the house who were sleeping in the courtyard at a little distance from the petitioner and had they got up the petitioner and his co-accused could not have forcibly removed the victim from her house even on pistol point because her parents could raise alarm attracting their co-villagers.
After all teen-agers like the petitioner and his co-accused could not dare to commit such an act of highhandedness. The prosecution story relating to her forcible removal from her house to the house of Iqbal is either an exaggeration or a complete concoction.
6. I am fully alive that Courts are always share to discuss the merits of the case at bail stage and I would not have departed from this well-settled principle because it may prejudice the case either way but the prosecution story is patently so ridiculous, improbable and incredible that one is apt to conclude that it is a pack of falsehood. In all probability the victim was carrying on with Saj id petitioner and she left her father's house of her own accord and the victim and the petitioner were surprised by the relatives of the girl when they were in pari delicto. She has also included two other boys, most probably at the instance of her parents, who have been found innocent during the investigation. Her medical examination has confirmed that she is habitual to intercourse. She being an unmarried girl was not virgin. Even otherwise her solitary statement is hardly sufficient to warrant the conviction of the accused/petitioner unless it is corroborated by some independent source which is not forthcoming in this case because on her own showing none had witnessed the occurrence when the petitioner was committing Zina with her. In the absence of any fresh sign of intercourse or forced intercourse the case appears to be a Zina with consent between the petitioner and the victim.
7. The petitioner is in judicial lock-up for the last six months without trial. I, therefore, admit him to bail in the sum of Rs,50,000 with two sureties in the like amount to the satisfaction of trial Court.
8. Before parting with this order I would like to make it clear that aforesaid observations made by this Court in this bail petition are absolutely tentative in nature and would not affect the prosecution case during the trial. I have every reason to hope that the trial Judge would form his independent opinion after recording evidence with regard to the genuineness of the prosecution version; the probability of prosecution story, medical evidence vis-a-vis character of the victim.