1990 P Cr (PLP)

(iii) Vagina ‑‑ admitted two fingers easily. From the examination of Mst. Jannat Mai, Dr. Tehseen Iqbal, Medical Officer was the opinion that she was not virgointacta and was habitual to sexual intercourse.

3. On 5‑8‑1989, 164, Cr.P.C. statement of Mst. Jannat Mai was recorded by a First Class Magistrate, wherein she implicated the present applicants 4 Not being satisfied with the opinion of Dr. Tehseen lqbal, Medical Officer, Mst. Jannat Mai was examined by a Medical Board on 9‑9‑1989. The observations and the opinion of the Board are as follows: "No injury seen on external genital area‑‑Hymen showing small old healed mark at 2 o'clock position. Hymen is fimbriated and admits one finger with difficulty." In view of the above observations the Board was of the opinion that an attempt of rape was made on Mst. Jannat Mai. On the basis of the above evidence the applicants and two others were sent up to stand trial for the said offence.

5. I have heard Mr. Sardar Khan, learned counsel for applicants and Mr. A.G. Mangi, learned AA.‑G. for State. I have also heard Mr. Muhammad Anwar Tariq, learned counsel for complainant Messrs Mangi and Tariq have raised no I objection to the grant of bail to applicant Allah Ditta. They have, however, opposed bail to applicant Na7ar Hussain.

6. Admittedly the F.I.R. was initially registered for the offence under section 16 of the Offence of Zina (Enforcement of Hudood) Ordinance, 1979, which deals with enticement with criminal intent. The delay in lodging F.1.R coupled with the earliest version of Mst. Jannat Mai made before police entered her version made in 164, Cr.P.C. statement doubtful.

7. There is also no dispute that parties are related to each other. Mst. Jannat Mai was earlier married to Kouro Khan. brother‑in‑law of applicant Nazar Hussain who has given the hand of his sister to Allah Diwaya, brother of Mst. Jannat Mai. These marriages proved to be failure and were accordingly dissolved. It is also an admitted position that applicant Allah Ditta is maternal‑uncle of Mst. Jannat Mai and absconding accused Mst. Ameer Mai is the wife of applicant Allah Ditta. The enmity between the parties is also admitted by Mst. Jannat Mai in her 164, Cr.P.C. statement.

8. The medical certificate issued by Dr. Tehseen Iqbal clearly indicated that Mst. Jannat Mai who was aged about 17 years was used to sexual intercourse. The Board constituted to examine Mst. Jannat Mai confirmed this position, but opined that it was a case of attempt to commit rape. No data is, however, available to arrive to this finding. Medical evidence in cases of attempt of rape may be from the following sources. (i) Marks of violence on the person of the prosecutrix (ii) Marks of violence about the genitals. (iii) Presence of seminal stains on the clothes of the prosccutrix or the accused. The opinion of the Medical Board is based on no such evidence. In case of medical evidence, its acceptability always depends on the grounds and cogency of reasoning on which the opinion is based. If the explanation in the certificate is not satisfactory, a Court is entitled to attach no importance to such certificate.

9. All the above factors when combined together make out a case of further inquiry within the meanings of subsection (2) of section 497, Cr.P.C. and both the applicants are thus entitled to the grant of bail. Accordingly bail is allowed to both the applicants in the sum of Rs.25,000 (Rupees twenty‑five thousand only) each with P.R. in the take amount to the satisfaction of 1st Additional Sessions Judge (,Central), Karachi.

10. It is needless to state that the observations made above are tentative in nature and are confined to the disposal of this bail application. They should not influence the mind of trial Court in any manner. . SA./N‑239/K Bail granted