2017 P Cr (PLP)

SHAHID HAMEED DAR, J.

The allegation against the petitioner, Azam Ali Shahid as per FIR No.86/15, dated 17.09.2015, under section 377, P.P.C., Women Police Station Kotwali, Faisalabd is that he used to maltreat his wife Mst. Amana Bukhari (complainant) due to which she deserted him and went to the house of her mother situated at Millat Town Faisalabad, where she stayed for about 1-1/2 years, before he contacted her again, sought an apology from her and brought her back to his house; he drank and committed unnatural offence with her at about 9:00 p.m on 14.08.2015 while his mother and sisters picturized the shameless scene; his mother pressurized the complainant-lady to bring heavy amount of money from her mother and threatened that if she didn't do so, she would release the video film prepared by her; the accused/petitioner joined by other members of his family threw the complainant-lady and his minor daughter Shehr Bano from the rooftop, due to which they both got seriously wounded; the accused propagated that the complainant was of unsound mind and she had thrown her minor daughter from the rooftop; he shifted his minor daughter to the hospital for treatment of her injuries, but he confined his wife in a room of the house with dirty clothes on; Waqas-ul-Hassan, real brother of the complainant brought her back in semi-unconscious condition; she told the whole story to Siraj Din and Mst. Tasneem Fatima.

2. The complainant-lady was medically examined on 14.09.2015 by a woman medical officer, who found her anal sphincter normal and did not come across any tear or laceration thereon. The anal orifice admitted one finger tightly with slight pain. Being a married lady her hymen was found torn and healed old. She admitted one to two fingers easily, per vagina, without pain. The woman medical officer kept her opinion as to the act of sodomy under observation till receipt of the expert report, which she received later on and opined that the examinee had not been subjected to anal intercourse.

3. After hearing the learned counsel for the parties and perusing the record, it appears that the complainant-lady did not lead a happy matrimonial life with her husband and developed certain grievances against him, which fact may easily be perceived from the contents of the FIR. She categorically alleged therein that she had repeatedly been subjected to anal intercourse by her husband, the accused/petitioner, but her medico-legal report badly negated her version as her anal sphincter was found normal and too tight to give way even to a single finger without pain. Its margins had not been pressed inwards nor did it give the look of a funnel, as may commonly be found in respect of a passive agent. The allegation that the accused/petitioner committed anal intercourse with her and his mother and sisters filmed the scene is simply unbelievable. No mother or sister can be considered to behave so shamelessly as alleged by the complainant-lady. She may have been misbehaved or tortured by her husband or other in-laws but it is hard to digest that they had morally run so bankrupt as alleged in the FIR.

4. The allegation of committing unnatural offence by the accused/petitioner could only be corroborated by the medical evidence, which is in direct conflict thereto and reduces veracity thereof almost to a cipher. So far as the allegation of throwing his own minor daughter Shehr Bano from the rooftop is concerned, the complainant-lady has herself rendered it a dubious circumstance by moving a petition under section 491, Cr.P.C. before the learned sessions judge, Faisalabad, whereby, she contended that her husband joined by his mother and other armed cronies forcibly snatched baby Shehr Bano from her at 5:00 p.m. on 14.08.2015 and took her away with them. If it happened like this, how could it be believed that the accused/petitioner had thrown his minor daughter and wife at 9:00 p.m. on 14.08.2015 from the rooftop and seriously wounded them. It looks as if the complainant-lady is furiously disposed to her husband (petitioner) and other in-laws and it may be for this reason that she narrated a scandalous story against them in the FIR. The medical evidence, as discussed above, badly rebuts the allegation of sodomy. The other allegation as to throwing of herself and her minor daughter by the accused/petitioner is also not believable at this stage in the backdrop of her petition under section 491, Cr.P.C., referred to herein above. The delay of about one month in lodging the FIR is also not a healthy sign for the case of the complainant. The petitioner's false involvement in this case due to malice or ulterior motives of the complainant may not be an outright improbability. Therefore, this application is accepted and ad interim pre-arrest bail granted to the petitioner vide order dated 30.11.2015 is confirmed subject to furnishing fresh bail bonds in the sum of Rs. 1,00,000/- with one surety in the like amount to the satisfaction of the learned trial court. Before parting with this order, it is clarified that the observations made hereinabove are of tentative nature, which would have no bearing on the trial of the accused/petitioner, if conducted. HBT/A-45/L Bail confirmed.