HAFIZULLAH Versus STATE
ORDER
1. Hafizullah son of Ghulam Muhammad Chano seeks bail in Crime No.151/93 of Police Station Kandhkot which has been registered for an offence under section 10 of Zina (Enforcement of Hudood) Ordinance 1979.and 376, P.P.C.
2. Brief prosecution story is that on 19-11-1993 at about 10-45 a.m. complainant Shabbir Ahmed Chano lodged F.I.R. at Police Station Kandhkot stating therein that on the above date complainant alongwith his sister Mst. Raheeman went to the house of Ghulam Muhammad to see his maternal-uncle Khuda Bux who has come to the house of Ghulam Muhammad from Ubauro. After some time complainant and his father Moula Bux and cousin Haji Muhammad set out to town and at about 10-00 a.m. when they returning to the house of Ghulam Muhammad they heard cries of Mst. Rahiman, when complainant and P.Ws. entered into the house of Ghulam Muhammad they saw accused Hafizullah tying the tape of his Shalwar and he emerged from the room and after seeing the complainant party he ran away towards the door. Thereafter complainant and P.W. entered into the room and they found Mst. Raheeman lying on the ground she was crying and her Shalwar was removed and blood was oozing from her private part. Complainant and P.W. put clothes on her. On enquiry she disclosed that when complainant and P.W. were not present in the house accused Hafizullah Cured the victim by giving her two rupees and asked her to go inside the room, she tried to return upon which accused caught hold of her and dragged her into the room where he put her trouser off and committed rape on her. Complainant thereafter went to police station and lodged the F.I.R. Accused moved the trial Court, where his bail application was rejected.
3. I have heard Mr. Muhammad Iqbal Mahar learned counsel for the applicant. He contends that as there are no four adult witnesses of the occurrence as such Hadd will not be applicable in this case. He has also relied on Nazir and another v. The State 1985 P Cr. L J 1250 in which both the accused were below eighteen years of age and were allowed bail. In this case accused were being tried with an offence under'section 377/34, P.P.C. and sections 7 and 12 of Hudood Ordinance. He has also cited a case reported as Murad v. The State 1986 P Cr. L J 1012, wherein accused was not named in the. F.I.R. Only evidence against accused, was belated supplementary statements of P.Ws. recorded under section 161, Cr.P.C. alleging that they received information that abductee and abductor were in the house of accused. Accused telling P.Ws. that he would arrange production of abductee if case against him a was withdrawn. No allegation that accused facilitated or abetted abduction. abductee also accused in case. Accused at most could be proceeded for giving shelter to absconding accused. Case of further inquiry held made out. Bail allowed. The learned counsel also cited 1970 S C M R 30 wherein bail, age of accused on X-ray examination found to be 16/17 years. Good ground for bail even in case of capital offence. He has also cited Amar v. The State 1994 P Cr. L J 906 wherein accused being aged about 10 years or 13-1 /2 years as described by the Medical Board, case against him fell under first proviso to subsection (1) of section 497, Cr.P.C. which had entitled him to be released on bail. Accused was admitted to bail accordingly.
4. Mr. Abdul Ghani Shaikh learned AA.-G. has also been heard for the State and,he has opposed the grant of bail to the accused.
5. I have gone through the case papers and found that in this case accused/applicant is named in the F.I.R. which is promptly lodged with the A police station. Allegation against him as per prosecution case is that he has committed rape with Mst. Raheeman a girl of nine years aged. As per Medical Certificate which is produced by the learned counsel for the applicant as Annexure "D" at page 23 of this bail application and Medical Certificate shows that on internal examination a second degree perineal tear is present and she is bleeding mildly, hymen ruptured. Perineal (Veginal tear) stitched by Dr. Khursheed, Gynalogist under general anaestheris. The medical report is in positive. Accused applicant was referred to the Medical Superintendent who has opined that he is capable to commit sexual intercourse. Mr. Mahar has produced school leaving certificate of the accused which shows date of birth as 4th February, 1977 as such he is over 16 years of age. So far contention of Mr. Mahar that Hadd in this case is not applicable. Section 10(3), Offence of Zina (Enforcement of Hudood) Ordinance, 1979 shows that whoever commits Zina bil-Jabr liable to Tazir shall be punished with imprisonment for a term which may extend tc twenty-five years and shall also be awarded the punishment of whipping numbering thirty stripes. So for the authorities cited by Mr. Mahar I have gone through the authorities and found that case of Nazir and another v. The State 1985 P Cr. L J 1250 and in case of Murad v. The State 1986 P Cr. L J 1012 pertaining to offence for sodomy punishable under section 377, P.P.C. and it is quite distinguishable and in these cases accused were not named in the F.I.R. and only evidence in those cases against accused was belated supplementary statements of P.Ws. recorded under section 161, Cr.P.C. and authority reported in 1994 P Cr. L J 906 also pertaining to sodomy punishable under section 377/34, P.P.C. and lastly the authority of Supreme Court reported as 1970 S C M R 30 in this case age of accused was determined on X ray examination whereas in this case there is no X-ray examination report of he accused/applicant regarding age and learned counsel for accused/applicant as relied upon school leaving certificate by him.
6. Prima facie accused has committed very heinous offence and he has Is committed Zina with a girl of nine years, she was found naked and she was 1 bleeding profusely from her private part which fact is supported by the Medical Certificate. Eye-witnesses have seen the accused coming out of the room when 8 they approached on the cries of Mst. Raheeman. Incident is that of day time, and F.I.R. is lodged promptly without any delay. In view of the facts and circumstances as stated above the bail application was rejected by a short order, dated 6-7-1994 these are the reasons for it.
7. N.H.Q./HAW/K Bail refused.