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Criminal Appeals Nos. 13 and 14 of 1985, decided on 17th February, 1986.

‑‑‑S. 497‑‑Offence of Zina (Enforcement of Hudood) Ordinance (VII of 1979), Ss. 10, 11 & 16‑‑Penal Code (XLV of 1860), S. 342‑‑Bail‑‑Offence punishable with death or transportation for life‑‑Assessment of evidence‑‑Courts at time of grant of bail, held, would make tentative assessment of evidence of parties to find out as to whether there appeared reasonable grounds to believe that accused was guilty for commission of offence punishable with death or transportation for life.

P L D 1978 S C 256; 1980 P Cr. L J 397; 1982 S C M R 153; Mehraj Din v. Muhammad Sharif and others 1968 S C M R 84; Hasan Shah v. Ghulam Murtaza P L D 1970 S C 335 and Fazlur Rehman v. State P L D 1981 S C (A J & K) 10 ref.

‑‑‑S. 497‑‑Offence of Zina (Enforcement of Hudood) Ordinance (VII of 1979), Ss. 10, 11 & 16‑‑Penal Code (XLV of 1860), S. 342‑‑Bail‑‑Accused raising objection that site plan prepared by Police showing a different place of incident as against place alleged by complainant‑‑Police Officer who prepared site plan not yet appearing to state that said site plan was prepared by him under instructions of complainant‑‑Such objection at bail stage, held, was of no avail.

‑‑‑S. 497‑‑Offence of Zina (Enforcement of Hudood) Ordinance (VII of 1979), Ss. 10, 11 & 16‑‑Penal Code (XLV of 1860), S. 342‑‑Bail‑‑Zina‑ Question that victim of crime was used to intercourse, held, of no help to defence‑‑Zina committed on a woman who was not a v gin would not minimise liability of person accused of commission of offence of Zina Such Zina would‑ be as complete an offence as committed on a virgin lady and would equally be punishable under S.10 of Ordinance.

‑‑‑S. 497‑‑Bail‑‑Order refusing bail by lower Court being correct view of case, appeal dismissed.

‑‑‑S. 497‑‑Offence of Zina (Enforcement of Hudood) Ordinance (VII of 1979), Ss. 10, 11 & 16‑‑Bail‑‑Appreciation of evidence‑‑No close examination of evidence to be made at bail stage‑‑Appellate and revisional Courts are expected to realise that opinion formed by them after close scrutiny of evidence during disposal of bail matter, would influence judgments of lower Courts‑‑To decide point of bail, provisions of S.497. Criminal Procedure Code, should be strictly adhered to, and from material brought on record it should be seen as to whether there were reasonable grounds to believe that accused persons were guilty of offence‑‑Close appraisal and critical survey of evidence was function of trial Court and it should not be pre‑empted by appellate Court for deciding bail application‑‑First information report, medical report and other attending facts and circumstances should be kept in view at bail stage besides heinousness of offence and manner in which it was committed.

‑‑‑S. 497‑‑Offence of Zina (Enforcement of Hudood) Ordinance (VII of 1979), Ss. 10, 11 & 16‑‑Penal Code (XLV of 1860), S. 342‑‑Bail‑‑Lower Court failing to consider charge of abduction made against accused alongwith charge of rape‑‑Complainant in her complaint blamed all accused persons of having removed her forcibly to an uninhabited house and committing rape on her‑‑Complainant repeated same allegations in her statement made before trial Court‑‑Appellate Court, held, was bound to consider implication of accused for abduction an to arrive at a judgment.

‑‑‑S. 497(5)‑‑Offence of Zina (Enforcement of Hudood) Ordinance (VII of 1979), Ss. 10, 11 & 16‑‑Penal Code (XLV of 1860), S. 342‑‑Bail‑ Cancellation of‑‑Complainant naming accused and charging them for commission of offence of abduction and rape in first information report and supporting same charge when she appeared before trial Court‑ Circumstantial evidence like blood‑stained 'Shalwar' and viginal swab, which contained semen, prima facie supporting charge‑‑Offence punishable with life imprisonment‑‑Order of lower Court granting bail, held improper in circumstances‑‑Order set aside and bail cancelled.

Advocate‑General for the State.

Ch. Muhammad Taj for the Complainant.

Muhammad Younus Surakhvi for Respondents.

Dates of institution: 3rd and 10th December, 1985.

The State, through Mst. Robins, has challenged the order passed by the District Court of Criminal Jurisdiction, Mirpur, dated 11, April. 1985, whereby Muhammad Akram. Muhammad Azam and Muhammad Arif accused‑respondents, who were charged for the commission of offence under sections 10/11 and 16 of the Zina Ordinance, read with section 342. Penal Code were released on bail and Muhammad Hanif appellant (herein) has challenged the same order of the District Court of Criminal Jurisdiction, Mirpur whereby his prayer for bail for the commission of the aforesaid offences, was refused.

2. The brief facts which gave rise to these two appeals are that on December, 23 1984. Mst. Robins, complainant, filed an application before the S.P., Mirpur and complained that last night (that day) she went out to answer the call of the nature, where Muhammad Hanif. Muhammad Azam and Muhammad Arif. accused‑respondents were present. who took her to a nearby uninhabited house and committed rape on her and thereafter, they took her to the jail quarters of sweepers and also repeated the same offence with her. At about 'Sehri' time, she was released with a warning that in case, she disclosed this occurrence to anybody else, she would be done to death or would be taken away forcibly. S.P. Mirpur forwarded this application to S.H.O. Mirpur where at 11‑45 a.m., a formal case was registered against the accused‑persons for the commission of offences under section 10/16, Zina Ordinance read with section 342, Penal Code.

3. Muhammad Hanif, appellant and Muhammad Arif, accused‑persons were arrested by the police whereas Muhammad Akram and Muhammad Azam, accused‑persons secured pre‑arrest bail from the lower Court but at the time of hearing the bail application of the accused‑persons the learned Sessions Judge, Mirpur was of the opinion that the accused persons except Muhammad Hanif were entitled to the concession of bail whereas the learned District Qazi did not subscribe to this view and disallowed bail to all of the accused persons. As there was a difference of opinion between the learned Members of the District Court of Criminal Jurisdiction, Mirpur therefore, a reference was made to the Azad Jammu and Kashmir Shariat Court and the said Court did not deem it proper to grant the concession of bail to all of the accused‑persons, thus the prayer for bail of all the four accused‑persons was rejected. The accused‑persons approached the Azad Jammu and Kashmir Supreme Court for grant of bail but their prayer was also rejected by the Supreme Court, vide order, dated 26th February, 1985. The Supreme Court found that there was an allegation for the commission of offence under section 11 of the Zina Ordinance as well but the police did not charge the accused‑persons for the commission of said offence, therefore, the charge for the said offence was also added.

4. The accused‑persons moved an application before the Tehsil Court of Criminal Jurisdiction, Mirpur which was rejected, vide order, dated 8th October, 1985 and their application for grant of bail moved before the District Court of Criminal Jurisdiction was disposed of through order, dated 27th November, 1985 and this order of the lower Count has been called in question by Muhammad Hanif, appellant and Mst. Robina complainant.

5. The learned counsel for the appellant, has assailed the order of the lower Court and stated that further inquiry was necessary to arrive at the decision about his guilt and the evidence, so far as brought on the record, was contradictory in nature and if read in the light of circumstantial evidence put forth by the prosecution, the case of the prosecution becomes false. He referred to the application moved by the complainant which was the basis of the F.I.R., the statement of the complainant recorded by the police under section 161, Cr.P.C., the statement of the complainant recorded by the Court, medical report, the statement of Doctor Nasim Firdaus and the site plan and pointed out that three different stories come out of the evidence produced by the prosecution. Besides this, the complainant was a girl of doubtful character as was evident from her medical examination. There was no independent evidence to show that the appellant (accused‑persons) committed rape, thus the lower Court failed to exercise the discretion in the judicial manner and refused to grant the prayer for bail without keeping in view the fact that the concession of bail was never refused as a matter of punishment. He prayed that the appellant (accused‑person) Was entitled to the concession of bail which might be granted to him. To support his contention, he referred to the following authorities:‑

(1) P L D 1978 S C 256,

(2) 1980 P Cr. L J 397, and

(3) 1982 S C M R 153.

6. In the case reported in P L D 1978 S C 256, it was held as

under:--

"Thus, the trend of authority is clear, consistent and uniform, and, as observed by Cornelius, C.J., a decision on a bail application involves a pre‑judgment on the evidence appearing, prima facie, at stage when bail is sought."

7. It was held in the case reported in 1980 P Cr. L J 397 as

follow:--

"On merits, bail could be granted only in such cases where no reasonable grounds exist for believing that the accused is guilty of such an offence or there is a case of further inquiry. The Court shall be failing in its duty if it does not consider all circumstances and merits of the case for grant or refusal of bail. The discretionary power of the Court to admit an accused to bail is not arbitrary but is judicious and is governed by well‑recognized principles."

8. The Pakistan Supreme Court while deciding a petition for cancellation of bail granted by the High Court in a murder case reported in 1982 S C M R 153, observed as under:‑

"It is true that at the stage of deciding the question of bail, the Court is not to enter upon a detailed appreciation and examination of the evidence but it is also clear that the question cannot be decided in vacuum, and the Courts have to look at the material available when the bail is applied for."

9. Controverting the stand taken by the learned counsel for the appellant, the learned Advocate‑General stated that while deciding the bail matters, the Courts are not expected to dive deep and critically examine the evidence brought on the record. All that the Courts are required to decide the bail matters, has to do is to see tentatively as to whether there are reasonable grounds to believe that the accused persons were guilty of the offence charged with and it is the function the trial Court while deciding the case finally, to closely examine the evidence and to see as to whether the prosecution has brought sufficient evidence on the record to prove that the accused‑persons were guilty of the offence charged with. In the present case, there was enough material to believe that the accused‑persons were guilty of the offence of Zina as well as abduction as contemplated by section 10/11 of the Zina Ordinance and offence under section 342, P.C. There is the statement of the complainant, her medical examination, the report of the Chemical Examiner, the blood‑stained 'Shalwar' and vaginal swabs which contained semen. To support the appeal of the appellant for the cancellation of bail of Muhammad Akram, Muhammad Azam and Muhammad Arif, accused‑persons, he contended that the lower Court, while passing the impugned order, made very close and critical assessment of the evidence of the prosecution which was not its function, while deciding the bail application and the opinion formulated by the lower Court shall certainly influence the trial Court at the time of final adjudiction of the matter. He referred to para. 1 at page 6 and paras. 1 and 2 at page 7 of the impugned order and pointed out that the District Court of Criminal Jurisdiction, Mirpur went into the evidence very deeply and travelled beyond its jurisdiction which was not available to it at the time of taking decision of the bail application. He prayed that the accused‑persons have committed a very detestable offence with a poor girl which tantamounts to ruin her life, as such, the appellant and other respondents do not deserve any leniency and the prayer of Muhammad Hanif appellant for bail may be rejected and the bail already granted to Muhammad Akram and others (respondents), by the lower Court, may be cancelled. To support his point of view, he cited authorities reported in:‑-

(1) 1968 S C M R 84;

(2) P L D 1970 S C 335; and

(3) P L D 1981 S C (A J & K) 10.

10. Mehraj Din v. Muhammad Sharif and others 1968 S C M R 84, Mr. Justice Muhammad Yaqub Ali, J. observed as follows:‑--

"The grounds urged in support of the application for bail go to the merits of the acquittal appeal. For obvious reasons, we are not prepared to examine those grounds at this stage."

11. In Gulzar Hassan Shah v. Ghulam Murtaza P L D 1970 S C 335 Mr. Justice Waheeduddin, J. made the following observations:‑

"Both the learned Additional Sessions Judge and the learned Single Judge of the High Court have entered into the merits of the case and have made observations which tend to prejudice the case of the prosecution. The question whether the wounds were caused by bullets or by pellets of the gun is a question which can only be decided at the trial of the case on the material which is brought on the record. It was premature to go into the merits of these points."

12. In Fazlur Rehman v. State P L D 1981 S C (A J & K) 10, Raja Muhammad Khurshid Khan, J. observed as under:‑-

"If such grounds exist tending to connect the accused with the crime bail should be refused without going into the deeper appreciation of the merits of those grounds and the evidence on which they are rested, which is the function exclusively of the trial Court."

13. I have considered the arguments advanced by the learned counsel for the parties, perused the entire record of the case and the authorities cited at the Bar.

14. Almost all the authorities lay down that the Courts, at the time of grant of bail, have to make tentative assessment of the evidence of the parties to find out as to whether there appear reasonable ground to believe that the accused‑person was guilty for the commission of offence punishable with death or transportation for life and keeping in view this state of the law, I have considered the objections raised by the learned counsel for the appellant Muhammad Hanif, against the impugned order.

15. The complainant, in the application filed by her before the S.P., Mirpur on November 23, 1984, complained that when she went out to make water, all the four accused‑persons (including Muhammad Hanif appellant), caught hold of her and took her in an uninhabited house and committed rape on her and thereafter, she was taken to uninhabited quarters of jail sweepers and the same offence was repeated with her. At the time of trial, she supported the version which she had narrated before the S.P., Mirpur. The blood‑stained 'Shalwar' and the vaginal swabs which contained semen, prima facie, corroborate her version. The objection that in her statement recorded under section 161, Cr.P.C., she did not say that Muhammad Akram and two others (respondents) also committed rape on her in sweepers' quarters, cannot be given weight because in her statement in the Court, she has denied to have made such statement and the police officer who has recorded her statement under section 161, Cr.P.C., has yet to appear and support the said statement.

16. The second objection relates to the fact that site‑plan prepared by the police, shows a different place of incident which is alleged by the complainant. This objection, at this stage, is also of no avail because the police officer who prepared the site‑plan, has not yet appeared to state that the said site‑plan was prepared by him under the instructions of the complainant.

17. The next objection of the learned counsel that the victim of crime (girl), as was evident from her medical examination, was used to intercourse, if accepted to be true. I think, will also be of no help to C the defence. The rape committed on a woman who is not a virgin, will not minimise liability of the person accused of the commission of the offence of rape. It will be as complete on offence as is committed on a virgin lady and will equally be punishable under section 10 of the Zina Ordnance. I think, the conclusion arrived at by the lower Court in case of Muhammad Hanif, appellant, is correct, therefore, I hereby reject his appeal.

18. Reverting to the stand taken by the learned Advocate‑General and supplemented by Ch. Muhammad Taj, Advocate that the impugned order, whereby Muhammad Akram, Muhammad Azam and Muhammad Arif, accused‑persons were released on bail, was improper, the learned Advocate‑General has assailed the order on the ground, firstly that the lower Court by, bypassing the provisions of section 497, Cr.P.C., have not stepped its jurisdiction and instead of examining the evidence to find out as to whether there appeared reasonable grounds to believe that the accused‑persons were guilty for the commission of offence which entailed death penalty or life imprisonment, made all efforts to find out the contradictions and weaknesses in the prosecution evidence (which will certainly cast its shadow at the time of judgment, on the trial Courts) and in support of his contention, he referred to paras. 1 and 2 at pages 7 and 8 of the impugned order and, secondly, the lower appellate Court, without making even the slightest reference to the offence of abduction for which the accused‑persons were charged with, released them on bail.

19. The first objection of the learned Advocate‑General that the lower Court made close examination of the evidence, is not altogether without substance. The appellate and revisional Court are expected to realise that the opinion formed by them after close scrutiny of the evidence, at the time of disposal of bail matter does influence the judgments of the lower Courts. To decide the point of bail, the provisions of section 497, Cr.P.C. are required to be strictly adhered to, and from the material brought on the record, it should be seen as to whether there are reasonable grounds to believe that the accused‑persons were guilty of the offence. The close appraisal and critical survey of the evidence is the function of the trial Court and it should not be pre‑emoted ‑by the appellate Courts for deciding the bail applications at the bail stage, the F.I.R., medical report and other attending facts and circumstances are to be kept in view besides the heinousness of the offence and the manner in which it was committed.

20. The next objection of the learned Advocate‑General that the lower Court did not consider the charge of abduction made against the respondents, is also correct. The complainant, in her complaint, accused all the four accused‑persons (respondents) of having removed her forcibly to an uninhabited house and committed rape on her. She repeated this allegation in the statement made by her before the trial Court, therefore, it was obligatory for the lower Court to consider the implication, of the accusation of abduction and to arrive at a judgment.

21. The complainant named the accused‑persons, namely, Muhammad Akram, Muhammad Azam and Muhammad Arif of the commission of offence of abduction and rape in the F.I.R. filed before the S.P. Mirpur and supported this charge when she appeared in the trial Court. The blood‑stained 'Shalwar' and the viginal swabs which contained semen, prima facie, support the charge. The offence charged with, is punishable with life imprisonment, I, therefore, think that the order of the lower Court, dated November 27, 1985, whereby the respondents were released on bail, was improper which is hereby set aside and the bail granted in favour of Muhammad Akram son of Alam Din, Muhammad Azam and Muhammad Arif sons of Farman Ali, is hereby cancelled.

M.Y.H. Bail cancelled.

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