SALMAN vs The STATE

ORDER

' ABDUL RASOOL MEMON, J.---The applicant is booked in Crime No,24/2013 under sections 376/365- B/34, P.P.C., Police Station Baloch Colony, Karachi and his bail plea was declined by learned First Additional Sessions Judge (South) vide order dated 5-3-2013, hence this application.

2. The brief facts of the prosecution case are that complainant Mirza Ishaque Baig registered F.I.R.

At Police Station Baloch Colony on 23-1-2013 at 1700 hours alleging therein that he was present at his shop, where received telephone call from his brother Umair Baig calling him at home, on reaching at the house, his daughter Aisha aged about 14 years informed him on Cell Phone that she left house at 7-30 p.m. (evening time) for meeting to her grandmother, when reached at House No,275/B, Sector-G (04) boys came, out of them she identified one as Mairaj while three persons were not known to her but can identify them if bring before her, they took away her to a Karkhana near Saba School, where forcibly committed Zina-bil-Jabr upon her; that thereafter they left her at Gujjar Chowk. Then she came at home.

3. Police took up investigation and arrested accused Suleman and Dilshad and got conducted the identification parade through victim Aisha before the concerned Magistrate where she/victim identified the present applicant/accused and stated that he committed Zina-bil-Jabr upon her along with three others and did not identify the accused Dilshad, she was also examined medically.

The victim also recorded her 164, Cr.P.C. Statement before the Magistrate in presence of the present applicant/accused.

4. Learned counsel for the applicant has argued that neither present applicant is nominated in F.I.R.

Nor his description is mentioned therein; that the identification parade of the present applicant carries no weight as he had been seen by the victim at police station. For the medical examination, he stated that no fresh tear of hymen or other injury on vagina or swelling of hymen, prerequisites of first sexual intercourse, were found, therefore, the involvement of the Present applicant in a case of zina-bil-jabr requires further inquiry. In support of his contention he has placed reliance on the case of MUNIR AHMAD v. THE STATE (1995 PCr.LJ 1745), AZHAR SHAFIQ alias BILLU and 2 others v. STATE (2004 YLR 3352), IKHTIAR GUL and 2 others v. THE STATE (1996 SCM R 1130)(2), and Naseebullah and others v. The State (SBLR 2011 FSC 17).

5. Learned A.P.-G. Has opposed the grant of bail to the applicant on the grounds that he has not, only been identified by the victim Mst. Aisha during identification parade but specific role of commission of Zina has also been alleged against him. The prosecution allegations are in conformity with the medical certificate so also the statement under section 164, Cr.P.C. Of the victim as such reasonable grounds exist to believe that the applicant has committed the non- bailable offence and is not entitled to grant of bail.

6. I have given careful consideration to the arguments advanced at bar and have gone through the relevant papers on record. The applicant has been alleged the act of commission of Zina-bil- Jabr with victim Aisha aged about 14 years along with Mairaj and two others. Of course, the name of the present applicant does not appear in F.I.R. But during identification parade before the Magistrate he was identified by the victim and assigned him specific role of committing Zina-bil- Jabr upon her. In her statement under section 164, Cr.P.C. Victim Aisha has fully implicated him in commission of alleged offence. So far the contention of learned counsel that applicant had been shown before identification parade to the victim at police station is concerned, it cannot be thrashed out at this stage because it will tantamount to deeper appreciation of the evidence, which is precluded at bail stage. From tentative assessment of evidence available on record, the case of applicant does not call for further inquiry.

7. The case-law relied by the learned counsel for the applicant with profound respect, it has no relevancy or application so far the facts and circumstances of this case are concerned. It is settled proposition of law that each criminal case is to be decided on its own facts and merits, there is no universal rule of application which can be applied to every case as facts and circumstances of each case will determine its fate. In this regard reliance may be placed on, the case reported as NAZAR MUHAMMAD v. THE STATE AND ANOTHER (PLD 1978 SC 236) and SAFDAR ABBAS and 2 others v.

THE STATE (PLD 1987 SC 467).

8. In view of the above circumstances, I do not find any merit in the bail application and dismiss the same accordingly. The trial Court is directed to expedite the matter and examine the complainant, victim, and Medical Officer within the period of three months from the date of this order and compliance be reported through M.I.T-II. The applicant would be at liberty to repeat the bail application thereafter, if so desire.