Find a Lawyer

Criminal Miscellaneous No. 548‑B of 1981 BWP, decided on 29^th July, 1981.

‑‑ S. 497 and Offence of Zina (Enforcement of Hudood) Ordinance (VII of 1979), S. 10(3)‑Bail‑Case of accused person otherwise fit for grant of bail‑Held, no justification for keeping him in jail even for a moment‑Bail should not be refused for simple reason that his case stands fixed for hearing in near future.

‑‑ S. 497 and Offence of Zina (Enforcement of Hudood) Ordinance (VII of 1979), S. 10(3)‑Bail‑Case falling within prohibitory clause of S. 497, Cr. P. C‑Held, bail should be allowed if a case for further inquiry made out.

‑‑ S. 497 and Offence of Zina (Enforcement of Hudood) Ordinance (VII of 1979), S. 10(3)‑Bail‑Petitioner 50 years of age having white beard and appearing to be of a mature mind‑Question whether petitioner, step paternal uncle of prosecutrix would have committed rape upon his niece or not needs serious consideration and further inquiry‑Bail allowed.

Malik Ghulam Farid for Petitioner.

Jamil Pirzada for the State.

Farrukh Mahmud for the Complainant.

Date of hearing : 29th July, 1981.

This is an application for bail on behalf of Zahur Ahmad in a case under section 10 (3) of the Offence of Zina (Enforcement of Hudood) Ordinance, 1979, registered at Police Station Civil Lines, Bahawalpur vide F. I. R. No. 196 of 1981 dated 28th March, 1981.

2. The allegation against the petitioner is that he on 28th March, 1981 committed rape upon the prosecutrix Mst. Farhat Bibi, who according to the prosecution, is aged thirteen years.

3. At one stage it was urged on behalf of the petitioner that the petitioner was suffering from ailment and for that purpose this Court, vide order dated 7th July, 1981 directed for the medical examination o the petitioner and result of his ailment. The report of the doctor shows that he is not suffering from any serious disease. On 25th July, 1981 it was vehemently argued by the learned counsel for the petitioner that the petitioner was an old man of 60/65 years of age, therefore, ‑I directed that the petitioner be summoned from the jail and be produced before the Court. On 27th July, 1981 he was accordingly produced. In order to be more sure about the approximate age of the petitioner, 'I directed that he be medically examined by Medical Superintendent, B. V. Hospital, Bahawalpur. The report has been received which shows that the petitioner is 50 years of age.

4. The learned counsel for the petitioner submits that the petitioner is in jail since 29th March, 1981 and not a single witness has been examined so far. He urges that, in fact, it is a false case and the father of the prosecutrix being a step‑brother of the petitioner has got him falsely implicated in the case and in any case the allegation at its face value is un acceptable or at least improbable one.

As against this, the learned counsel for the State assisted by the learned counsel for the complainant argues‑

(i) that it is a case of prompt F. I. R.,

(ii) that there is sufficient evidence to connect the petitioner with the commission of crime ;

(iii) that the challan has been submitted and the case is fixed for hearing on 7th September, 1981 ;

(iv) that the case falls within the prohibitory clause of section 497, Cr. P. C.

So far as contentions Nos. 1 and 2 are concerned, these can be properly appreciated only at the time of trial and not at this stage. So far as contention No. 3 is concerned, 1 am of the opinion that if the case of an' accused person is otherwise fit for the grant of bail, there would be no/A justification for keeping him in jail even for a moment and he should not be refused bail for the simple reason that his case stands fixed for hearing in near future. So far as contention No. 4 is concerned, even in those cases which fall within prohibitory clause, the bail may be allowed if a case for further inquiry is made out.

5. Having considered the arguments advanced by the learned counsel for the parties and without entering into the discussion on the merits of the case, I find that the petitioner who had appeared before me is an old man having white beard. According to the medical report, he is about 50 years of age. He appears to me a man of mature mind, therefore, the question whether the petitioner who is admittedly a step paternal uncle of the prosecutrix would have committed rape upon his niece or not needs serious consideration and further enquiry. . Without expressing any opinion lest it may prejudice the merits of the case, the petitioner who is in jail since 29th March, 1981 is allowed bail in .the sum of Rs. 20,000 with one surety in the like amount to the satisfaction of Assistant Commissioner/Duty Magistrate, Bahawalpur.

6. However, it would be open to the complainant and the State to move for the cancellation of bail granted to the petitioner after the evidence of the prosecutrix is recorded, if so advised. Needless to add that the expression of the opinion if any, being a tentative one, will not influence the mind of trial Court.

Bail granted.

Find a Lawyer Near You

Dealing with a matter like this? Connect with a verified advocate in your city — free on SJP Lawyers Directory.