State Versus ZAHOOQ
1. MUHAMMAD YAQOOB, J .---This is an application for cancellation of bail granted to the respondent in a case under Offence of Zina (Enforcement of Hudood) Ordinance, 1979.
2. The brief facts of the case as contained in the F.I.R. lodged by the complainant named therein are that on 17-10-2008 the grand daughter of complainant namely Bibi Sofia was present in her make-shift house/ tent at Harpan Dass Chilas. In the meantime accused/petitioners forcibly dragged the victim Bibi Sofia into the tent and committed gang rape with the above named victim. After commission of the offence all the accused decamped from the scene of occurrence. When the complainant/F.I.R. lodger came to the tent/house, the victim narrated the whole incident.
3. The co-accused namely Sumbul Shah and Saifullah have been enlarged on bail by the learned Additional Sessions Judge vide order dated 13-4-2009. Being aggrieved from the above cited order, State has filed the petition for cancellation of bail, before the Chief Court, Northern Areas Gilgit, which is still pending for adjudication. The present petitioner had moved an application for bail, before the Chief Court, Northern Areas. The learned Single Bench of Chief Court accepted the bail petition and enlarged the accused/petitioner on bail under the "Rule of consistency" against which the State has preferred this bail cancellation application before the apex Court on 27-05-2009. That the petitioner/accused personally appeared before the full Bench of this court and stated at Bar, that he was not going to engage a counsel for his legal assistance. However, the apex Court, instructed to the learned Advocate-General for Northern Areas, to argue the instant bail cancellation application in favour as well as against the accused.
4. The learned Advocate-General contended that the accused/ petitioner has been directly nominated in the F.I.R. The medico-legal report is in positive, which is a more authentic report without any shadow of doubt. However he pointed out some minor contradictions in the F.I.R. and site plan.
5. We have given our thoughtful consideration to the arguments advanced by the learned Advocate General and have perused the record of the case. Perusal of the record reveals that all three accused/ petitioners have been nominated in the F.I.R.. The victim has fully implicated the petitioners/accused in the, offence by making statement under section 161, Cr.P.C., which is in full corroboration to the medico legal report. Material available is also sufficient at bail stage to connect the accused/petitioner with commission of offence falling within the prohibitory clause of section 497 subsection (2) of Cr. P.C.
6. The above aspects of the case in the light of the statement of minor victim girl (15 years of age) and her medical examination would apparently suggest that the respondents were equally responsible for the commission of offence and would not be entitled to the concession of bail on the basis of rule of consistency. The bail in non-boilable cases is discretionary and Court must exercise this discretionary jurisdiction in the light of the settled principles for grant of bail in such cases. The bail can not be claimed as of right in non-bailable cases punishable with death or life imprisonment unless the case falls within the ambit of sub-section (2) of section 497 Cr. P.C. and if the case is not covered by the provision of the subsection (2) of section 497 Cr. P.C. the bail may not be granted as a matter of grace. This Court is slow in interfering in the order passed by the Chief Court in its discretion but if it is found that discretionary jurisdiction was not properly exercised in the spirit of law. This Court would not hesitate to interfere in the order.
7. In the present case the respondent alongwith his co-accused allegedly committed Zina with minor girl, which is an offence under section 10(4) of Offence of Zina (Enforcement of Hudood) Ordinance, 1979 punishable with death. The bail in such nature of cases is not to be ordinarily granted, and respondent being directly charged by the victim girl would not be entitled to the concession of bail.
8. For what has been discussed herein above, this Court is inclined to cancel the bail granted to the present petitioner by recalling the impugned order passed by the learned Single Bench of Chief Court Northern Areas, to meet the ends of justice. Leave to appeal is granted.
9. Bail cancellation petition disposed of accordingly. File be consigned to record after due completion.
10. N.H.Q./10/Glt. Bail cancelled.