2022 PLP 2323 (YLR)

MALIK SHAHZAD AHMAD KHAN, J.

The petitioner, namely, Muhammad Akram through the instant petition seeks post arrest bail in case FIR No. 648 dated 26.02.2021 registered at Police Station City Raiwind District Lahore offences under sections 376/337-J of P.P.C.

2. Arguments heard. Record perused.

3. As per brief allegations levelled in the FIR, on 24.02.2021 at about 08:00 p.m., Mst. Saima complainant was called by the petitioner on the pretext of giving her a job at a beauty Parlor. The petitioner along with one unknown accused thereafter, took the complainant to Raiwind City at an unknown place where some intoxicated material was administered to her through a bottle and the petitioner and one unknown accused thereafter committed rape with the complainant turn, by turn hence, the abovementioned FIR.

4. It is evident from the perusal of the medico legal report of the complainant that she stated before the Medical Officer that she was living separately from her husband from the last 6/7 months. The complainant is admittedly a married lady therefore, her medico legal report showing her hymen to be old ruptured, is inconsequential. It is true that according to the DNA test report, the petitioner and Ghulam Murtaza co-accused cannot be excluded being contributors towards the semens detected on the vaginal swabs of the complainant but point for determination before this Court is that as to whether it is a case of rape as alleged by the complainant punishable under section 376 of P.P.C. or it is a case of 'zina' with consent punishable under section 496-B of P.P.C. which is a bailable offence. In this respect, I have noted that no allegation of forcible abduction has been levelled by the complainant against the petitioner and the complainant herself stated that she accompanied the petitioner and one unknown accused as the petitioner promised to get a job for her in a beauty parlor. Although the complainant alleged that after taking her to an unknown place at Raiwind City, she (complainant) was administered some intoxicated material by the petitioner and one unknown accused through a bottle but neither there is any medico legal report in support of the abovementioned allegation showing that any intoxicated material was administered to the complainant nor any such material or bottle containing intoxicated material has been recovered in this case. Under the Circumstances the allegation of rape levelled against the petitioner requires further probe. It is further noteworthy that asper DNA test report, Muhammad Akram petitioner and Ghulam Murtaza co-accused both, cannot be excluded being contributors to the semens detected on the vaginal swabs of the complainant. The complainant levelled the allegation of rape against Muhammad Akram and one unknown accuse in the contents of the FIR and she subsequently implicated Ghulam Murtaza co-accused in place of one unknown accused through her supplementary statement dated 26.02.2021 but the complainant later on, submitted her affidavit in the Court of learned Addl. Sessions Judge, Lahore wherein she exonerated the abovementioned Ghulam Murtaza co-accused from the commission of the offence and consequently, post arrest bail was granted to the abovementioned co-accused on the basis of exonerating statement of the complainant. According to DNA test report the case of the present petitioner is at par with the case of abovementioned Ghulam Murtaza co-accused to the extent of allegation of rape but as the complainant herself has exonerated the abovementioned co-accused from the commission of offence through her affidavit and statement made in the Court of learned Addl. Sessions Judge, Lahore therefore, prosecution case against the petitioner has also become one of further inquiry, as observed by the Hon'ble Supreme Court of Pakistan in the cases of Kaleem Ullah v. The State and others' (2017 SCMR 19) and Jamshaid Asmat alias Sheedu v. The State and others' (2011 SCMR 1405).

5. In the light of above, this petition is allowed and the petitioner is admitted to bail after arrest subject to his furnishing the bail bonds in the sum of Rs.200,000/- (Rupees two hundred thousand only) with one surety in the like amount to the satisfaction of the learned trial Court. SA/M-151/L Bail granted.