' Petitioner is charged under section 10(3) of Offence of Zina (Enforcement of Hudood) Ordinance, 1979 vide F.I.R. No,75, dated 14-6-2000, at Police Station Chontra, Rawalpindi.
2. Briefly I will touch upon one or two relevant circumstances without claiming to be exhaustive in any manner, and then discuss the contentions of the learned counsel for the parties.
3. Mst. Zakian Bibi, aged 13/14 years, is putting up in the house of her father Muhammad Banaras, resident of Dhok Galian Dakhli Mial, Police Station Chontra, Rawalpindi. Her father is a milk-man by profession and earns his livelihood by selling milk. Tariq Pervaiz, their co-villager is a shop-keeper who is engaged in the sale of milk and Muhammad Banaras, the father of the complainant, used to sell his milk to Tariq Pervaiz. On 13-6-2000 Mst. Zakian Bibi, complainant, took milk to the shop of Tariq Pervaiz, accused. She reached there at 8 a.m. Tariq Pervaiz, accused was alone at his shop.
When she gave pot of milk to Tariq Pervaiz, he forcibly dragged her inside his shop, bolted the door and committed Zina-bil-Jabr with her by removing her Shalwar forcibly. She raised alarm whereupon the accused threatened her with death. After subjecting her to this bestial act of lust she was set free by the accused. On reaching home she told her woeful tale to her mother. Her father (Muhammad Banaras) was not present in the house. He had gone outside the village. On the following morning he came back and his daughter Mst. Zakian told her all about the occurrence. He took her to Police Station Chontra where she lodged the F.I.R.
4. Mr. Muhammad Ilyas Siddiqui, Advocate, the learned counsel for the petitioner has sought bail inter alia on the grounds that a false case has been cooked up against the petitioner; that there is a conflict between the medical evidence and ocular version of the victim. Even otherwise, the solitary statement of Mst. Zakian is hardly sufficient to warrant the conviction of the accused without corroboration which is not forthcoming in this case.
5. Dr. Babar Awan, Advocate, the learned counsel for the complainant while opposing the bail petition vehemently contended that the challan has already been submitted in the Court against the petitioner and the prosecution evidence has been summoned after framing the charge. In such circumstances when the petitioner is charged with a heinous crime like Zina-bil-Jabr, he does not deserve the concession of bail. Reliance is placed on Muhammad Sadiq's case reported in 1980 SCM R 203. The learned counsel further contends that the victim is of tender age. By all means she is minor. Her vaginal swa bs have been found stained with semen, hence the petitioner is not entitled to bail. Reliance is placed on Shahid Maqbool's case reported in 1994 SCM R 1674.
6. I have given my careful consideration to the arguments propounded by the learned counsel for the parties. The learned counsel for the petitioner persistently urged that a false case has been cooked up against the petitioner. I do not see any merit in this contention. One must bear in mind human psychology and behavioural probability while assessing the testimonial potency of the victim's version. Why a girl of tender age would foist a rape charge on a stranger unless a remarkable set of facts or clearest motives were made out? The inherent bashfulness, innocent naivete and feminine tendency to conceal the outrage of masculine sexual aggression are relevant factors which improbablise the hypothesis of false implication. Why, of all the persons in the world, should be victim hunt up the petitioner and point on him the accusing finger? I am, therefore, convinced that it is not a case of false implication. Hence, the first point urged by the learned counsel for the petitioner is overruled.
7. Coming to the next point regarding conflict between the victim's version and the medical evidence, the learned counsel for the petitioner has urged two points in support of his contention.
First; that there was no mark of violence on the body of the victim which prima facie negates her version that she was subjected to Zina-bil-Jabr, and secondly; that as per the opinion of the lady doctor, the hymen was not intact which prima facie shows that the victim was habitual. After due consideration I have not been able to persuade myself to hold that there is any conflict between the ocular evidence and the medical evidence on the basis of the aforesaid points. The victim was ravished on 13-6-2000 at 8 a.m. While she was medically examined on 14-6-2000 at 9-30 p.m. i.e, after about two days of the occurrence, hence the absence of marks of violence on her body is quite understandable. As regards the second point it is indeed true that the hymen was found torn but that was the consequence of rape committed upon the victim aria this goes to substantiate the prosecution case rather than the accused's version. Even otherwise it is too much to say that she was habitual because on the lady doctor's own showing one finger could be introduced into the vagina easily but painfully. This finding of lady doctor negates the above contention.
8. Coming to the last point argued by the learned counsel for the petitioner that corroborative evidence was an imperative component of judicial credence in rape cases, suffice it to say that there are several sacred cows of criminal law followed in British-Indian Courts which are superstitious survivals and need to be re-examined. When rapists are revelling in their promiscuous pursuits and half of human kind--woman kind is protesting against its hapless lot, when no woman of honour will accuse another of rape since she sacrifices thereby what is dearest to her, we cannot cling to fossil formula and insist on corroborative testimony. Even if, taken as a whole, the case spoken by the victim strikes a judicial mind as probable.
9. It is significant to note that in this case the testimony of victim receives corroboration from the medical evidence. Her complaint to her parents and the report of the Chemical Examiner regarding vaginal swa bs, taken by the lady Doctor at the time of medical examination of the victim, that those were stained with semen further fortify the victims' version that rape has been committed upon her.
10. When a woman is ravished what is inflicted is not merely a physical injury, but "the deep sense of some deathless shame". A rape! a rape! Yes you have ravished justice; forced her to do your pleasure".
11. The trial has already commenced in this case; the offence is punishable with 25 years' R.I. As I have observed earlier, rape for a woman is deathless shame and must be dealt with as the gravest crime against human dignity.
12. No grounds for bail. The bail petition is accordingly dismissed.
13. Before parting with this case, I would like to make it clear that the observations made in this order are tentative in nature and shall not prejudice the case of the petitioner at the time of trial.