2009 PLP 1180 (YLR)

KHURSHID ANWAR BHINDER, J.

The petitioner seeks cancellation of bail granted to respondents Nos.2 and 3 by the learned Additional Sessions Judge vide order dated 22-12-2008 in case F.I.R. No.1184/2008 dated 2-12-2008 registered under section 376 P.P.C. at Police Station Ferozewala District Sheikhupura.

2. Precise allegations against respondent No.2 as per narration of F.I.R. are that he had forcibly entered the house of the complainant and had committed Zina bil jabr with her and respondent No.3 was also with him.

3. Learned counsel for the petitioner submits that respondents Nos.2 and 3 had illegally entered the house of the complainant and had committed zina bil jabr with her, thus, committed an offence under section 376, P.P.C. He further submits that the respondents are misusing the concession of bail by extending threats to the petitioner, therefore, bail granting order is against the facts and law which is liable to be set aside and bail granted to the respondents be cancelled.

4. I have heard the learned counsel for the petitioner and have perused the available record. As far as case of respondent No.2 is concerned, he is no doubt nominated in the F.I.R. with specific role but I am afraid there is no eye-witness account of the occurrence. Merely nomination of respondent No.2 with the commission of offence does not necessarily make the case against respondent No.2 for the reason that the petitioner had not reported the matter immediately to police as heinous offence was committed with her. Moreover, she did not make hue and cry at the time of commission of offence, especially when respondent No.2 was empty-handed. She could have retaliated and reported the matter to the police immediately but she did not do so. No medical examination was conducted to establish the fact as to whether it was respondent No.2 who had committed the offence. Furthermore, the petitioner should not have allowed a stranger to come to her house when he had disclosed that he is the friend of her husband but the petitioner without enquiring into the matter had let respondent No.2 to come to her house.

5. No reliance can be placed on the statement of the petitioner who had reported the matter to police after the lapse of two months and she did not get herself medically examined to determine as to whether semen stained swabs belonged to the petitioner or not. In fact, had there been medical examination on time then probably it could have been possible to know as to whether respondent No.2 has committed zina bil jabr on the basis of medical evidence, as there is no other eye-witness account of the occurrence, therefore, possibility of false implication of the respondent No.2 cannot be ruled out as heinous offence of zina bil jabr was committed with the petitioner and she had not reported the matter to the police. It is an established fact that the petitioner was living alone along with her children and there is no other grown-up male member in the family and her husband was away to Faisalabad for earning his livelihood, it is not practically possible that husband of the petitioner would not have come home during these two months, especially when he knew that his wife and children are alone at home, therefore, it cannot be definitely known as to whether she got pregnant from her husband or from the accused person as Faisalabad is not very far from the residence of the petitioner. Even a person of very meagre means can afford coming to. Ferozewala from Faisalabad once in two months, hence story narrated in the F.I.R. seems implausible and illogical. The petitioner has not been able to produce any evidence by which it could be proved that her husband did not come to her house in these two months when she got pregnant, therefore, case of respondent No.2 is that of further inquiry into his guilt.

6. As far as case of respondent No.3 is concerned, he had merely abetted the offence and did not actively participate in the occurrence. Since case of main accused i.e. respondent No.2 is doubtful and the role of respondent No.3 is lesser heinous in nature and there is no evidence against him as well, therefore, case of respondent No.3 is also that of further inquiry into his guilt and the learned Additional Sessions Judge had rightly exercised his discretion of granting bail to respondents Nos.2 and 3 and I do not find any reason to interfere in the bail granting order.

7. For what has been discussed above, the present petition has no force, hence stands dismissed in limine. H.B.T./S-26/L Petition dismissed.