1996SCMR1130(2) (PLP)

FAZAL ILAHI KHAN, J.

This petition for leave to appeal with notice to the State is directed against the judgment of the Peshawar High Court dated 27-11-1993 in Cr. Miscellaneous No.719 of 1993 whereby the bail of the accused/petitioners, granted by the Sessions Judge, Kohat, was cancelled. On the information received by the Police on 18-5-1993 that a woman was taken to a nearby room in the Katcheri premises. The police party arrived at the spot where they found the accused/petitioners alongwith a lady; namely, Mst. Saeeda alias Awwal Nisa present in the garrage. The lady reported to the police that she was on her way from K.D.K. Kohat that on the Katcheri gate the accused/petitioner caught hold of her and took her to a room where they committed Zina with her. It may be pointed out that Ikhtiar Gul petitioner is a Chowkidar, Salim petitioner is a Peon in the Sessions Court while Niaz Ali is Chowkidar of the Court of Senior Civil Judge. The accused/petitioners were medically examined and found fit to commit sexual intercourse, Semen was detected. on the Shalwar of Niaz Ali and Ikhtiar Gul which was sent to the Chemical Examiner whose report is in the positive. There was no such stains detected on the clothes of Salim. The lady on, her examination was found to have no evidence of violence or injury on her body. She was arrayed as a co-accused being a consenting party to offence. The learned Sessions Judge granted bail to the accused/petitioners vide his order dated 10-6-1993 which was cancelled by the learned High Court on the application of Advocate-General, N.-W.F.P., Peshawar. On hearing the learned counsel for the petitioners interim bail was granted to Salim Khan accused/petitioner No.3 on 8-1-1994 as there was no evidence on the record corroborating the complainant's revision that he had committed sexual intercourse with Mst. Saeeda. It was contended by the learned counsel for the petitioners that sometime before the occurrence theft of electric fan took place from the Bar room and in that connection the local police had be laboured the petitioner though they had nothing to do with the premises where the Bar room is situated. Petitioners had, therefore, filed a complaint against Amin Nawab Shah, S. H. O. P. S. Cantt in the Court of Sessions Judge, Kohat and proceedings were initiated against him under section 353/500/504/506/323, P.P.C. against the said police officer. However, the matter was subsequently compromised and the police officer was discharged in the complaint case, copy of the complaint has been placed on the file. For this reason mala fidely the petitioners have been falsely implicated in the case with the connivance of Mst. Saeeda, a woman of bad character. It was further contended that the petitioners are married, grown up persons, therefore, even if there were found some semen stains on their Shalwars, the same cannot in any way connect the accused with the commission of the offence. It was lastly contended that the learned Sessions Judge having exercised his discretion in the matter of bail after taking into consideration the material available on the file no interference was required by the High Court. After hearing the learned counsel for the parties, without going into the merits of the case, we feel that in absence of any other independent evidence at this stage the case of the petitioners is arguable for the purpose of bail. This petition is, therefore, allowed. The interim bail granted to Saleem Khan petitioner is confirmed whereas Ikhtiar Gul and Niaz Ali petitioners Nos. l and 2, are allowed bail in the sum of Rs.20,000 each with one, surety each in the like amount to the satisfaction of trial Court. N.H.Q./I.225/S ?????????????????????????????????????????????????????????????????????????????????? Bail allowed.