2017 PLP 85 (YLRN)

GHULAM QADIR LEGHARI, J.--After rejection of pre-arrest bail plea of applicants/accused by the learned Sessions Judge, Badin vide order dated 15.7.2016, in Crime No.49/2016, registered at Police Station Kario Ganhwar, under sections 376, 506/2, 34, P.P.C., the applicants have approached this Court for same relief.

2. Brief facts of the FIR are that complainant Mohib Ali filed application under section 22-A & B, Cr.P.C. and after obtaining orders for registration of FIR he appeared at Police Station Kario Ghanwar and lodged instant FIR stating, therein that he had married with Mst. Naziran daughter of Akber Perhiar aged about 21-22 years. His wife Mst. Naziran told him that about 7/8 months prior to the date of his marriage viz. 17.4.2016 the applicant/accused Zulfiquar Ali and Khadim Hussain used to visit the house of his inlaw and in absence of other inmates of the house Zulfiquar Ali used to commit Zina with Mst. Naziran which fact was disclosed to the applicant and in order to blackmail her, accused Khadim Hussain and Zulfiquar Ali used to issue threats of murder to her. It is further stated that the wife of complainant told him that she became pregnant from Zulfiquar Ali and after getting information from his wife, the complainant narrated the facts to Ramzan and Abdul Aziz and then after getting orders from the Court of law he has lodged present report alleging further that Zulfiquar used to commit rape with his wife Mst. Naziran when she was un-married, hence this bail application.

3. Learned counsel for the applicants/ accused contended that prior to the registration of this FIR complainant had also attempted to involve the applicant/ accused in another case, but he did not succeed and ultimately he has lodged this FIR after the delay of 9 months and has falsely involved the applicants/accused and delay in lodging the FIR has not been plausibly explained. The delay in lodging the FIR shows that it was lodged after due deliberation and consultation and false implication of the applicants/accused cannot be ruled out. He further argued that the applicants/accused are innocent and have been falsely implicated due to enmity over dispute of land; that admittedly the alleged incident of rape is 9 months old and victim was unmarried and residing with her parents but she did not narrate the incident to her parents. He next contended that it is admitted fact, from the perusal of the FIR that victim used to surrender herself before male person with her own wish and consent and there was no allegation of forcibly commission of offence and that during pendency of application under sections 22-(A) and (B), Cr.P.C., victim was referred to the women medical officer who examined victim and found she was pregnant of 33 weeks and she opined that there was no any mark of violation on her body which shows that no forcible rape was committed. He further argued that victim has delivered baby and it can only be determined about the correctness of allegation of victim about emergent of child from one male person by getting the expert opinion in the shape of DNA test, hence the present case requires for further inquiry. He further argued that trial court had referred the matter for DNA test purpose and which is awaited and order of the trial court is attached with this application. He argued that due to matrimonial affairs applicants have been mala fidely involved in this case. He has placed his reliance of PLJ 2012 Cr.C. (Lahore) 671, 2012 YLR (Lahore) 1839 and 2012 MLD (Peshawar) 810.

4. On the contrary, learned A.P.G contended that complainant has nominated the applicant/accused and specifically mentioned applicant No.1 he has committed Zina with the victim and she became pregnant and victim in her 161, Cr.P.C. statement has specifically implicated applicant/accused No.1 that he was continuously committing Zina with her while allegation against the applicant No.2 is that he was blackmailing the victim. He further argued that in such rape cases honour is involved and victim used to remain silent and did not disclose such fact until and unless such circumstances compelled her, hence, delay in lodging the FIR is very much explained. He further argued that ocular evidence and the statement of the victim is corroborated by the medical evidence and there is no malafidy on the part of the prosecution and applicants/accused are prima facie involved in heinous offence of committing Zina, therefore he is not entitled for concession of pre-arrest bail.

5. Learned counsel in rebuttal contended that medical evidence does not show that illegitimate blood belongs to applicant No.1 and if pregnant lady level allegation against other person that he has committed Zina with her, it does not mean that her statement is trustworthy.

6. I have perused the FIR which shows that complainant's wife Mst.Naziran told him that about 7/8 months prior to the date of his marriage with her viz. 17.4.2016 applicant/accused Zulfiquar Ali and Khadim Hussain used to visit the house of her parents in their absence and accused Zulfiquar used to commit Zina with Mst.Naziran and accused Khadim Hussain used to blackmail her and they used to issue threats that if she disclosed the incident they will not spare her. Mst. Naziran has also fully implicated the applicant/accused Zulfiquar in her 161, Cr.P.C. statement that 7/8 months prior to her marriage with complainant in the absence of her parents, accused Zulfiquar was committing Zina with her and she became pregnant from him and both accused threatened that if she discloses the incident they will not spare her. So far the delay of 9 months in lodging the FIR is concerned, in rape cases the honour is involved victim remained silent and did not disclose such incident to their parents to save their honour. In the instant case victim Mst. Naziran also did not complain against the accused to save herself from defaming in the society and when she became pregnant of 7/8 months, after the marriage, circumstances compelled her hence she disclosed the incident of rape committed with her by accused Zulfiquar Ali to her husband, hence the delay in lodging the FIR has been plausibly explained by the complainant. The medical evidence also shows that she was pregnant of 33 weeks, hence applicant/accused is prima facie involved in heinous of committing rape with Mst. Naziran and he is not entitled for grant of extraordinary relief of pre-arrest bail and the same is dismissed and interim pre-arrest bail granted to him is hereby recalled.

7. So far as the allegation against co-accused Khadim Hussain that he was blackmailing her, she has not disclosed in what manner he was blackmailing her, hence his false implication cannot be ruled out, therefore the interim pre-arrest bail granted to applicant/accused is hereby confirmed on same terms and conditions. WA/Z-13/Sindh Order accordingly.