2001 P Cr (PLP)

Criminal Miscellaneous No.3113/B‑of 2000, decided on 16th January, 2001. ‑‑‑‑S. 497‑‑‑Offence of Zina (Enforcement of Hudood) Ordinance (VII of 1979), S.10(3)‑‑‑Bail, grant of ‑‑‑Prosecutrix was subjected to medical examination three days after the occurrence and medical examination did not show any mark of violence on any part of her body ‑‑‑F.I.R. was filed almost three months after the incident in question‑‑‑Two eye‑witnesses in their affidavits produced before Investigating Officer had stated that they had not seen any such incident and another eye‑witness had stated before the Court that he had not witnessed the alleged incident‑‑‑No report of the Chemical Examiner was available on record regarding vaginal swabs of the prosecutrix‑‑‑First Investigating Officer, had declared the accused to be innocent and case was being investigated afresh‑‑‑Case against the accused calling for further inquiry, he was admitted to bail. Mian Fazal Rauf Joiya for Petitioner. Mian Anwarul Haq for the State: Through this petition Muhammad Abbas petitioner, has sought post- arrest bail in case F.T.R. No.334 registered at Police Station Saddar, Arifwala District Pakpattan Sharif on 23-7-2000 for an offence under section 10(3) of the Offence of Zina (Enforcement of Hudood) Ordinance 1979.

2. After hearing the learned counsel for the parties and going through the record it has been noticed that the F.I.R. in this case had been lodged with a delay of about 13 hours. The allegation in the F.I.R. that the prosecutrix was dragged by the present petitioner to a nearby field situated about an acre away before subjecting her to Zina‑bil‑Jabr prima facie cannot be accepted except with a lump of salt. The prosecutrix was subjected to medical examination three days after the occurrence and her medical examination did not show any mark of violence on any part of her body. It is available on the record that the first statements made by Munir and Abdul Sattar P.Ws. before the Investigating Officer in support of the allegations levelled the F.I.R. were made on 20‑11‑2000 i.e. almost three months to the incident in question. It is also available on the record that on 31‑7‑2000 both the said alleged eye‑witnesses had appeared before the Investigating Officer and had placed copies of their affidavits on his record to the effect that they had wrongly been cited in the F.I.R. as eye‑witnesses as they had not seen any such incident. In these circumstances the subsequent volte face by the said witnesses incriminating the present petitioner and posing themselves to be eye‑witnesses of the alleged incident is again a circumstance which prima facie is extremely doubtful. It is also available on the record that Abdul Sattar P.W. had made a statement before the learned Additional Sessions Judge, Arifwala on 15‑12‑2000 categorically maintaining therein that he had never witnessed the alleged incident of commission of Zina‑bil‑Jabr by the petitioner with Mst. Faizan Bibi. No report of the Chemical Examiner is available on the record so far regarding vaginal swabs of the prosecutrix. The first Investigating Officer of this case i.e. the Station House Officer of Police Station, Saddar, Arifwala had declared the petitioner to be innocent; the second Investigating Officer i.e. the' Assistant Superintendent of Police, Arifwala had found the petitioner to be guilty and, this Court has been informed today, the case in hand is being investigated afresh presently by the Incharge, C.I.A. Pakpattan. This shows that even the Investigating Agencies have so far not been able to concur on the question of guilt of the present petitioner: All these factors clearly show that the case, against the petitioner calls for further inquiry into his guilt within the purview of subsection (2) of section 497, Cr.P.C. This petition is, therefore, allowed and the petitioner is admitted to bail subject to furnishing bail bond in the sum of Rs.50,000 (Rupees fifty thousand only) with one surety in the like amount to the satisfaction of the learned trial Court. H.B.T./M‑444/L Bail granted.