Mst. SAFIA BANO vs TANVEER AHMED and 2 others

ORDER

1. ' Through this application under section 497(5), Cr.P.C. The petitioner seeks cancellation of to Tanvir Ahmad and Imran Manzoor respondents Nos.1 and 2 by the learned Additional Sessions Judge, Kot Adu District, Muzaffargarh vide order dated 5-6-2004 in case F.I.R. No.52 of 2004, dated 23-4-2004 registered under section 10 of Offence of Zina (Enforcement of Hudood) Ordinance (VII of 1979) at Police Station Daira Din Panah, District Muzaffargarh on the application of present petitioner namely Mst. Safia Bano.

2. ' Brief facts of the case are that she was aged about 13 years, virgin and belonged to a poor family, whose mother was already died. She used to visit the house of her relative Manzoor Ahmad to recite Holy Quran where Tanvir Ahmed and Imran Manzoor respondents Nos.1 and 2, who were of the same ages used to tease the petitioner but she being ashamed did not disclose the same to anybody. About five months earlier to registration of case respondents Nos.1 and 2 came to her house and finding her alone committed Zina-bil-Jabr with her. On the hue and cry of the complainant, Mst Tasleem Bano her elder sister attracted to the spot and witnessed the occurrence whereafter the accused ran away from the spot. The story was told to Mst. Miro sister of Tanvir Hussain, who firstly threatened the petitioner and then asked the petitioner to keep quiet for the sake of any dispute between the two families. According to the petitioner, being minor and due to fear of her father she did not disclose this matter to anybody. However, after some months changes occurred in her body and it came to light hat she had become pregnant. The relatives of the respondents-accused had threatened them with dire consequences and also advised for abortion. Some Panchaytes were also convened and thereafter the case was registered.

3. ' Learned counsel for the petitioner contends that serious allegation of Zina was levelled against respondents Nos.1 and 2 by the petitioner but even then the learned Additional Sessions Judge vide order dated 5-6-2004 has granted the bail before arrest to the respondents on surmises and conjectures while ignoring the criteria laid down by the superior Courts for grant of bail before arrest. It is also contended that the respondents were wrongly treated as juvenile without holding any inquiry in this regard. It is further contended that there was no previous enmity or between the parties to falsely implicate the respondents in this heinous offence. Hence, it has been prayed that the bail before arrest granted to the respondents may be cancelled.

4. ' On the other hand, learned counsel appearing on behalf of respondents Nos.l and 2 opposes this application on the ground that the order has been passed on the basis of documents produced by respondent No.2 to prove that they were juvenile. It is further contended that father of petitioner and Manzoor, who is brother of Tanvir Ahmad respondent No.1 are closely related to each other. It is also contended that the Nikah of Tanvir Ahmad with the petitioner was solemnized on 8-9-2003 in the presence of witnesses and also got transferred land in her favour which was later on cancelled by DDOR on the asking of Mansoor, who is a Patwari. It is also contended that on 30-3-2004 Mansoor Ahmad was coming on a car and the relatives of Wahid Bakhsh had committed dacoity whereupon a criminal case was also got registered by him and the said accused were not arrested by the police, which shows the mala fides of the police which are also crystal clear from the present, case. It is further contended that according to medical report of the petitioner there were symptoms of abortion and having failed, this case was got registered against the present respondents by making then scapegoats after about 5 months of the alleged occurrence. Also relies upon PLD 1983 SC 82, PLD 1985 SC 1950, in support of his contentions. It is lastly contended that the criteria for cancellation of bail is entirely different than grant of bail and the respondents are innocent.

5. ' Learned counsel for the State supports the application of the petitioner on the ground that the alleged Nikah with Tanvir Ahmad according to respondent was held on 8-9-2003 but the same was got registered in the Nikah Register on 14-5-2004 while the instant case was registered on 23- 4-2004. It is also contended that inference can be drawn that the said Nikah with Tanvir Ahmad was subsequently prepared in order to make out a case for their bail before arrest and it is also interesting to note that a divorce deed has also been prepared by the respondents which is undated, while the petitioner has also filed a suit for jactitation of marriage. It is further contended that the petitioner and her father were blackmailed by the accused party after commission of offence by the respondents and mere delay in such-like cases is no ground to disbelieve the prosecution story. According to him the respondents committed a heinous offence which falls within the prohibitory clause and their bail .Before arrest may be cancelled. He has also pointed out certain defects in the Nikah Register; which has been taken into possession by the police.

6. ' I have heard the learned counsel for the parties and also perused the impugned order as well as the documents attached therewith. Specific allegation of commission of Zina-bil-Jabr was levelled against the respondents by the petitioner, who was aged about 13/14 years. The petitioner is present in Court and seem to be 13/14 years old and has become pregnant of about six months, which is a clear sign of commission of Zina with her. The.Petitioner has levelled the allegation that both the respondents had committed Zina with her. There was no previous enmity or grudge between the parties to falsely implicate the respondents in the present case who even otherwise are closely related to each other.

7. ' The learned Additional Sessions Judge has granted bail before arrest to the respondent mainly on the ground that the petitioner was married to Tanvir Ahmad respondent No.1 on 8-9-2003 and the accused were juvenile: The factum of Nikah is being denied by the petitioner and she has also filed a suit for jactitation of marriage. I have noticed that in the application submitted for bail before arrest on 8-5-2004, there was no mention of said Nikah with the petitioner. Moreover, it was got registered on 4-5-2004, even after registration of the present case. There does not appear any solid reason for false implication of the respondents in the present case, when both the parties are closely related to each other and no previous enmity existed between them, if Nikah was actually performed between the petitioner and Tanvir Ahmad as legitimacy of the expected born baby is also crucial point for the complainant family. The delay in registration of the Nikah coupled with non-mentioning of the same in the bail. Petition and the flaws pointed out by the learned State counsel in Nikah Register as some parts of Nikah Forms were found to contain signatures/ thumb- impressions ,of certain persons, without filling up the columns lead to inference that it was not prepared afterwards and no importance can be given to the same at this stage.

8. Mere minor age is also no ground to grant bail in such-like heinous offences. Reliance is placed on 1999 SCM R 338. The question to be determined is whether the accused was entitled for the grant of oail. The case-law cited by the learned counsel for the respondents is not applicable to the facts and circumstances of the present case as it is settled principle of law that each criminal case has to be decided on its own merits.

9. ' The learned Additional Sessions Judge has granted bail before arrest to the respondents while discussing deeper merits of the case and ignoring the criteria laid down by the superior Courts for grant of bail before arrest. At bail stage only tentative assessment of the evidence on record has to be made, which prima facie makes out a case of gang rape against the respondents, which falls within the prohibitory clause of section 497, Cr.P.C.

10. ' Even if for the sake of arguments it is presumed that the petitioner was a consenting party, it does not lower the heinousness of the offence committed by the respondents as Zina is punishable in any form, but on the other hand the petitioner was admittedly a minor and consent of a minor cannot be taken into account. Mere delay in such-like case is also no ground for grant of bail as the complainant party has to think hundred times before registration of the case, which involved, the honour of the whole family.

11. For the foregoing discussion, I am of the considered view that it was not a fit case for the grant of bail before arrest. Consequently, the order dated 5-6-2004 is set aside and bail before arrest granted to respondents Nos.1 and 2 by the learned Additional Sessions Judge, Kot Addu is cancelled. This application is accepted. Both the respondents shall be taken into custody and sent to jail.

12. Pre-arrest bail cancelled.