2011 PLP 730 (MLD)

SARDAR MUHAMMAD SHAMIM KHAN, J.

Noor Samad, petitioner seeks his post arrest bail in a case registered against him vide F.I.R. No.98 of 2010 dated 27-3-2010, for the offence under section 376 of P.P.C., registered at Police Station Tulamba, Tehsil Mian Channun, District Khanewal.

2. According to the F.I.R., on 27-3-2010 at about 9-00 p.m., Mst. Mumtaz Bibi, the complainant who was virgin, was proceeding to ease herself and when she reached near the house of Noor Samad, petitioner, she was over powered by' the petitioner and it is further alleged that the petitioner committed Zina Bil Jabar with her, whereas Punnon, Irshad and Haq Nawaz kept guard at that time.

3. Learned counsel for the petitioner submits that the allegation of rape levelled against the petitioner by the complainant was falsified by the medico legal report of Mst. Mumtaz Bibi as Lady Doctor did not observe any marks of violence on her body, that according to her medico legal examination Mst. Mumtaz Bibi was not a virgin as her hymen was not freshly torn and two fingers could pass inside her vagina without tenderness. It has further been submitted that after medico legal examination Lady Doctor did not give any opinion regarding commission of rape rather the opinion was postponed till the receipt of report of semen detection. Learned counsel for the petitioner has contended that according to the report of Technical In-charge CEMB, Forensic Science Laboratory, the vaginal swabs of victim Mst. Mumtaz Bibi did not generate any male profile, so no comparison could be made with DNA profile of the petitioner; that keeping in view the DNA report, police has prepared the report under section 173 of Cr.P.C. regarding the discharge of the petitioner from this case, so he has prayed that the petitioner be admitted to bail. Reliance has been placed on Shahbaz Masih v. The State (2005 YLR 3140) and Aamir Ali and others v. The State (1984 SCMR 521).

4. Learned D.P.-G. in view of the report under section 173, of Cr.P.C. for the discharge of the petitioner from this case, has not opposed the grant of bail to the petitioner, however, learned counsel for the complainant contends that the petitioner is nominated in the F.I.R. with a specific role; that penetration was sufficient to constitute an offence under section 376 of P.P.C. and that ipsi-dixt of police is not binding on the Courts; that heinous offence was committed by the petitioner, so he is not entitled to the grant of bail.

5. I have heard the arguments advanced by learned counsel for the parties and perused the record.

6. This occurrence took place at night time but the complainant did not give any source of identification. The allegation of rape alleged against the petitioner requires further inquiry as keeping in view the medico legal examination of the complainant Mst. Mumtaz Bibi, conducted by the Lady Doctor, no marks of violence were present all over her body and on local examination no injury was present in perennial area. Although hymen of the complainant was not intact according to the medico-legal report but the Lady Doctor did not observe any fresh tear in the hymen rather two fingers could pass inside vagina without tenderness. The medico-legal examination of the complainant reveals that she was not virgin at the time of her medical examination. Report of DNA test also reveals that vaginal swabs of Mst. Mumtaz Bibi, victim did not generate any male DNA profile, therefore no comparison could be made with DNA profile of the petitioner.

7. Perusal of record also reveals that police after investigation prepared report under 173 of Cr.P.C. dated 21-8-2010 whereby I.O. has recommended for the discharge of the petitioner from this case as he was found innocent.

8. For what has been discussed above, petition in hand is accepted and the petitioner is admitted to bail subject to his furnishing bail bonds in the sum of Rs.1,00,000 with one surety in the like amount to the satisfaction of the learned trial Court. H.B.T./N-3/L Bail granted.