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Criminal Miscellanous No. 466-B of 1984, decided on 18th March, 1984.

---S. 497/498/164--Offence of Zina (Enforcement of Hudood) Ordinance (VII of 1979) Ss, 10, 11, 18--Bail--Victim girl making statement under S. 164, Cr.P.C. that she left her house out of fear of her father who used to beat her--Report of Woman Medical Officer showing that her hymen was intact and there were no marks of violence on her person- Medical report showing that complete penetration had not taken place and there was only attempt to commit rape--Divergent statement made by victim girl in first information report that she was subjected to rape by at least four persons for a month--Case of accused, held, needed further inquiry--Bail granted.

Ch. Riyasat Ali and Mian Muzaffar Ahmad for Petitioners.

Jahangir Wahala for Complainant.

Ch. Abdul Aziz for the State.

Date of hearing; 17th March, 1984.

Qurban Hussain Shah, his sons Arad Shah and Tahir Hussain Shah, son-in-law Abid Shah his daughter Mst. Bilqees Bibi wife of Abid Shah, Muhammad Riaz and his mother Mst. Hakim Bibi who are involved in a case under sections 10, 11 and 18 of the Offence of Zina (Enforcement of Hudood) Ordinance 1979, have moved this petition for bail.

2. On 24th November, 1982 Mst. Rashada, aged 10-11 years, daughter of Ghulam Rasul, complainant, was found missing from her house. Ghulam Rasul complainant reported the matter to the police on 21st December, 1982 alleging that somebody had concealed her. In the first instance a case under section 364, P.P.C. was registered vide F.I.R. No. 276. Later on, the offence was altered to sections 342 and 344, P.P.C. Qurban Hussain Shah, Abid Hussain Shah and Mst. Bilqees were challaned for these offences. On 17th March, 1983, Riaz Ahmad petitioner and his father Muhammad Khan filed a suit for damages against Ghulam Rasul complainant alleging that during the investigation of case F.I.R. No.276 they were summoned by the police at the instance of the defendant (complainant) and subjected to torture by the police but ultimately they were found innocent. On 10th January, 1983 Mst. Rashada returned to the house of her parents. On 11th January, 1983 she was medically examined by Woman Medical Officer, THQ Hospital, Bhalwal. who opined that her hymen was intact and there was no mark of injury or violence on her person. On the same day she made a statement under section 164, Cr.P.C. to the effect that she had run away from her house out of fear as her father used to beat her.

The complainant made several complaints to the higher police authori ties against the Investigating Officers and ultimately filed a writ petition praying that the S. H .O., Police Station Bhalwal, be directed to register a case against Mst. Hakim Bibi, Riaz, Abid Shah, Mst. Balqees. Tahir and Asad Shah petitioners and one Muhammad son of Murad. The writ petition was disposed of with the observation that it was "a fit case to be brought to the notice of the Inspector-General of Police for looking into the whole affair and taking such action as he may deem fit in accordance with law " During the pendency of the writ petition Mst. Rashada was medically examined by a Medical Specialist of Lady Aitchison Hospital, Lahore, on 14th November, 1983, who opined that her hymen had got old partial tears and "she had been attempted for rape (but complete penetration had not taken place)". Thereafter another F. I. R. was recorded on 18th November, 1983 (in respect of the same incident of abduction) on the statement of Mst. Rashada under sections 10 and 11 of the offence of Zina (Enforcement of Hudood) Ordinance, 1979, wherein she alleged that Mst. Hakim Bibi petitioner had taken her away on the evening of 24th November, 1982 on the pretext that she would take her to her real mother. She kept her in the house of Mst. Bilquees for three days and thereafter Mst. Bilqees and Mst. Hakim Bibi took her to the house of Qurban Hussain Shah where she was kept for one month and three days. During this period Riaz petitioner had been committing Zina bil-Jabr with her in the house of Qurban Hussain Shah. Abid Hussain Shah, Tahir Hussain Shah and Qurban Hussain Shah used to commit Zina-bil-Jabr with her in the Jungle near the house of Qurban Hussain Shah petitioner.

3. The learned counsel for the petitioner contends that the version narrated by Mst. Rashada is highly improbable and the opinions of the two lady doctors being at variance, the case of the petitioners needs further inquiry. The learned State counsel also concedes that the case of the petitioners needs further inquiry. The learned counsel for the comp lainant, on the other hand, submits that there was no previous enmity between the complainant and the accused persons therefore no case for bail is made out.

4. I have gone through the relevant material. In the first instance Mst. Rashada made a statement under section 164, Cr, P.C. to the effect that she had run way from her house out of fear as her father used to beat her. She was medically examined by Woman Medical Officer, Bhalwal and her report is to the effect that the hymen of the abductee was intact and there was no mark of violence on her person. Even according to the second medico-legal report, complete penetration had not taken place and- there was only attempt to commit rape. Mst. Rashada has appeared in Court. She is a small girl with a very poor physique. In the second F.I.R. she however, stated that as many as four persons, namely, Riaz, Abid Hussain Shah, Tahir Hussain Shah and Ourban Hussain Shah had been committing rape with her during the period of one month and Qurban Hussain Shah had three days. It is important to note that Qurbar Hussain Shah, is the father of Tahir Hussain Shah and father-in-law of Abid Hussain Shah. Keeping in view the medico-legal reports and the divergent statements made by Mst. Rashada, I feel inclined to the view that the case of the petitioner needs further inquiry. Consequently, I admit them to bail in the sum of Rs.10,000 each with one surety each in the like amount to the satisfaction of Assistant Commissioner, Bhalwal.

M. Y. H. Bail granted.

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