' CHAUDHARY MUHAMMAD TAJ, J.--- This appeal is filed against the judgment passed by the Shariat Court of Azad Jammu and Kashmir on 24-6-2003 whereby the bail was declined to the appellant.
2. The facts are that a case under section 10 of the Enforcement of Hudood (Zina) Act, 1985 was registered with Dadyal Police against the appellant. The case after investigation stands challaned before the Tehsil Court of Criminal Jurisdiction, Dadyal. The appellant was arrested and he moved bail application before the trial Court which was dismissed. An appeal filed with the District Court of Criminal Jurisdiction, Mirpur was also disallowed. The appellant filed a revision petition before the Shariat Court of Azad Jammu and Kashmir which also met the same fate. Hence this appeal.
3. Ch. Ali Muhammad, the learned counsel for the appellant, raised following points in support of the appeal:--
(i) That there is no prima facie case existing against the accused-appellant. The evidence proposed by the prosecution is full of doubts and contradictions and is interested;
(ii) that the First Information Report was delayed which was lodged after nearly four months of the alleged occurrence.
(iii) that the matter is of further inquiry as the case has been registered under section 10 of Z.H.A. On the statement of Mst. Kubra Ilyas, who according to the facts alleged by the prosecution, has made statement nearly four months after the alleged occurrence, therefore, she was a consenting party and an accomplice on whose statement the appellant cannot be involved; and
(iv) that the learned Judge in the Shariat Court and the Courts below have failed to appreciate the important aspect of the case that there is no evidence whatsoever including the medical evidence to connect the accused-appellant with offence. The appellant, therefore, was entitled to the grant of bail which has illegally been refused.
4. Sardar Abdul Razzik Khan, the learned Additional Advocate-General representing the State, opposed the, contentions of the learned counsel for the appellant in the following manner:-
(i) that there is a strong prima facie case against the accused-appellant, based on the First Information Report, statements of the prosecution witnesses recorded under section 161, Cr.P.C.
Alongwith recovery evidence and corroborated by the medical evidence;
(ii) that the complainant is a poor man who was working as Labourer and was under the pressure of the accused as such could not lodge First Information Report earlier; and
(iii) that all the Courts below after careful consideration arrived at a conclusion that a prima facie case existed against the appellant as such refused the bail.
5. We have heard the learned counsel for the parties and also gone through the record.
Complainant, the father of the alleged victim Kubra Ilyas, lodged a written report with the Superintendent of Police, Mirpur on 28-4-2003 which was referred to Deputy Superintendent of Police, Dadyal on the same day who marked the same to S.H.O. Police Station Dadyal. The aforesaid written report was accompanied by an affidavit which appears to have been executed on 26-4- 2003 on behalf of Muhammad Ilyas, Kubra Ilyas and Shakeela Begum wife of Muhammad Ilyas. On this report a case was registered. The accused-appellant was arrested who applied for his bail which was declined by the trial Court, District Court of Criminal Jurisdiction and the Shariat Court.
6. The case of the prosecution, as stated, is that on 13-4-2003 the complainant was sleeping in his house. At the night time he woke up and saw that his daughter Kubra Ilyas aged 16 years was not in his room, therefore, he called her who replied from the toilet that she was coming. When she came she was not in normal position and the light of the toilet was also off, therefore, a doubt arose in his mind and saw that his neighbour Nazir alias Jeero son of Amir Baz was standing who ran away. He narrated the story to his wife who was told by her daughter that four months back when the parents were not in the home the said Nazir gave them some juice packs to drink. After drinking everybody in the house went to sleep. In the morning she found that the bed sheet was blood- stained. However, she did not disclose the story to anyone. In the morning wife of the accused came in her house and took her to her house where she was shown her naked photos and thereafter she was subjected to sexual assault by the appellant. This practice continued. The wife of the appellant used to be a party in the sexual activity.
7. The prosecution recorded statements under section 161, Cr.P.C. Of the complainant, Mst. Kubra Ilyas, Shakeela Begum, Muhammad Maqsood and Muhammad Malik, the recovery witnesses.
8. The learned Judge in the Shariat Court refused the bail on the ground that there is a prima facie case against the accused-appellant which is supported by the prosecution evidence.
9. While dealing with the bail matter of an accused involved in a non-bailable offence he shall not be so released on bail if there appear reasonable grounds for believing that he has been guilty of an offence punishable with death or imprisonment for life unless the case is covered by any of the provisos of subsection (1) of section 497, Cr.P.C. But if it A appears to the Court at any stage of investigation, inquiry or trial, that there are no reasonable grounds for believing that the accused has committed a non-bailable offence but there are sufficient grounds for further inquiry into his guilt, he shall be released on bail under subsection (2) of section 497, Cr.P.C.
10. After examining the prosecution case the following important features are noticed:--
(a) That the First Information Report lodged with the Superintendent of Police, Mirpur on 28-4-2003 did not attribute any allegation against the appellant;
(b) that the affidavit attached with written report which appears to have been executed on 26-4- 2003, showed the allegations against the accused-appellant and his wife on different occasions occurred foar months before the registration of the case and the last occurrence took place on 13- 4-2003;
(c) that the alleged victim of the crime did not disclose the fact of committing Zina with her to any person when according to her own version for a period of four months she was being subjected to sexual assault by the appellant;
(d) that the occurrence which took place on 13-4-2003 noticed by the complainant, the father of the alleged victim was also reported on 28-4-2003 after a delay of 15 days which has not been explained either before the police or during the arguments before the Court;
(e) that the affidavit by the complainant, alleged victim of the crime and mother of the victim was executed on 26-4-2003 narrating the story but it is not shown as to why the report was not made on the same day;
(f) that the medical report shows that she was raped 48 hours back on the date of examination, i,e, 30-4-2003. It is not clear whether the appellant could be connected with the offence, when the only corroboratory evidence proposed by the prosecution is that he could perform the sexual act; and
(g) that the story put forth by Mst. Kubra Ilyas and her failing to report to the police or anybody else would also require a further probe as to whether she was a consenting party and thus an accomplice in the offence.
11. In view of the above state of facts, we have no hesitation in holding that the matter is of further inquiry as according to the alleged victim she did not disclose the incident of committing Zina with her to any person and this, according to her version, continued for a period of four months. Even after acquiring knowledge the complainant lodged the First Information Report after 15 days without explaining the delay to the police or before the Court. Failing to disclose the incident to any person in the circumstances of the case requires further probe of the matter as to whether she was a consenting party and thus an accomplice in the offence committed by the accused and in such circumstances whether the accused-appellant could alone be charged. Therefore, we accept the appeal and allow the bail by setting aside the order passed by the Shariat Court.##TE# The appellant shall be released subject to executing the bail Bond in the sum of Rupees five lac with two sureties and a personal Bond in the like amount to the satisfaction of the Assistant Registrar of this Court.