2013 P Cr (PLP)

AMIN-UD-DIN KHAN, J.

Muhammad Ameen son of Muhammad Bakhsh, petitioner seeks post-arrest bail in case F.I.R. No.177 of 2010 dated 29-4-2010, registered at Police Station Saddar Hasilpur, District Bahawalpur, for an offence under section 376(1), P.P.C.

2. The allegation against the petitioner is that he was Imam Masjid and was imparting religious education to the children and Amna Bibi aged 11/12 years was also used to get education of the HOLY QURAN from him; on 25-4-2010 Amna Bibi went to the mosque and did not return; when the complainant and the P.Ws. went in search of Amna Bibi and reached near the mosque they heard the shrieks of Amna Bibi and on reaching inside the mosque they found that both were naked; their shalwars were removed and the petitioner was committing zina. On seeing them the accused fled away from the spot. Resultantly the instant F.I.R. was registered.

3. Petitioner was arrested on 29-4-2010 and is behind the bars since then. His plea for post-arrest bail did not favour with the learned Additional Sessions Judges who turned down his plea vide orders dated 23-7-2010 and 6-6-2011. Hence this petition.

4. Learned counsel for the petitioner contends that petitioner is innocent and has been involved in this case due to previous enmity and grudge as the petitioner's father was witness against Shaukat Lumberdar in a murder case who is a close relative of the complainant; that there is a dispute over Imamat of the mosque between the petitioner and Muhammad Ashraf who too is a close relative of the complainant: that the petitioner is behind the bars since 29-4-2010; that there is an un-explained delay of four days in lodging the F.I.R.; that the report of Chemical Examiner and D.N.A. test are negative, therefore, the offence of zina is not proved as according to the Medico-legal Report no injury or mark of violence was present on the body of the alleged victim; and that the trial has not commenced, therefore, the petitioner is entitled for the grant of bail.

5. On the contrary learned counsel for the complainant has vociferously opposed the bail on the grounds that the petitioner has committed rape with an innocent girl of 11 years who was getting religious education from him;

6. Learned D.P.-G. has also vehemently opposed the grant of bail on the ground that for commission of rape a penetration is sufficient and there is no need of D.N.A. test at bail stage: that the trial has commenced and till 24-8-2011 on 32 occasions the case has been taken up, out of which on twenty nine times the case was adjourned on the request of the learned counsel for the accused; therefore, the delay in conclusion of the trial is being caused due to non-cooperation of the defence counsel.

7. I have heard the learned counsel for the parties and have perused the record.

8. The petitioner is nominated in the F.I.R. with an allegation of committing rape with a young girl of 11 years who was getting religious education from him. According to the Medico-legal Report the hymen was torn fresh and the vagina admitted two fingers tightly. Learned counsel for the petitioner has failed to point out as to why the complainant has involved the petitioner in a case in which he himself runs the risk of stigmatizing his own young daughter destroying her future. The contentions of the learned counsel for the petitioner with regard to tearing of hymen; the negative report of DNA test or Chemical Examiner, the dispute over IMAMAT of the Masjid relate to deeper appreciation of the material available on record, which are neither desirable nor require at bail stage. It has straightaway been observed that the petitioner is involved in a heinous offence which falls within the ambit of prohibitory clause of section 497, Cr.P.C. Resultantly this petition is dismissed. MWA/M-157/L Bail refused.