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Criminal Miscellaneous No. 476/B of 1986, decided on 24th March, 1986.
‑‑‑S. 497‑‑Offence of Zina (Enforcement of Hudood) Ordinance (VII of 1979), Ss. 10, 11 & 18‑‑Bail, grant of‑‑Petitioner found in process of committing Zina with a minor girl in a mosque‑‑Medical opinion, on basis of intact hymen, that prosecutrix not subjected to Zina, held, a matter for consideration of trial Court‑‑Contention that petitioner falsely involved by complainant, a real uncle of victim and other witnesses, held further, unimaginable‑‑Bail declined, in circumstance.
Muhammad Farooq Qureshi Chishti for Petitioner.
Falzur Rehman for the State.
Date of hearing: 24th March, 1986.
Petitioner seeks bail in case F.I.R. No. 381 dated 30‑9‑1985 under sections 10/11/18 of the Offence of Zina (Enforcement of Hudood) Ordinance, 1979 and section 295, P.P.C. Police Station Moghalpura, Lahore.
2. According to the F.I.R. Habibur Rehman complainant while returning home from his office, on hearing shrieks, entered the mosque and saw the petitioner committing Zina with his niece aged about 7‑8 years. Sher Muhammad, Bakhshur Rehman and Tauqir Ali also arrived in the meantime. The girl was without trousers and was weeping. The petitioner, whose name, the complainant and others came to know oil the spot, was taken into custody. The girls, on query, told them that the petitioner had induced her and then taken her forcibly in the mosque and had committed Zina with her.
3. The petitioner was handed over to the Police.
4. Learned counsel for the petitioner contended that the petitioner has been involved falsely by the complainant and the witnesses as he had quarrelled with them prior to the occurrence. Learned counsel be referring to the opinion expressed by the Lady Doctor who had examined the girl, contended that according to the medical opinion, the girl had not been subjected to Zina and as such the main brunt of the allegation falls down. According to him the girl was taken to the Lady Doctor, after change of clothes and as such even if positive opinion has been given by the Chemical Examiner about the clothes taken into possession by the Police before her medical examination, no weight can be given to that piece of evidence.
5. The petitioner was found performing sexual intercourse with a minor girl of 7‑8 years in the mosque. He was seen in that act, in addition to the complainant by three others. It is unimaginable that uncle of the girl and three others would have falsely set up this merely for some quarrel having earlier taken place with the petitioner. Above all, the parents of the girl would not have allowed this to happen. Even otherwise the contention of learned counsel that the petitioner had quarrelled with the witnesses, seems to be without any substance because according to the F.I.R. the witnesses learnt the name of the petitioner, when he was caught in the mosque.
6. The opinion of the Doctor that the girl had not been subjected to sexual intercourse, seems to be for the reason that she had found the hymen intact. It will be for the trial Court to see whether tearing of hymen by one act of intercourse is a necessary element or not Be that as it may, the position remains that even if there was no actual penetration, the provisions of section 18 of the Offence of Zina (Enforcement of Hudood) Ordinance are clearly attracted. The petitioner was found in the process of committing Zina in the mosque, and as such he does not deserve any leniency. There is no question of the, cage coming within the purview of further enquiry. Dismissed.
S.G.D. Petition dismissed.
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