1988 P Cr (PLP)

Criminal Bail Application No. 903 of 1987, decided on 15th September, 1987. ‑‑‑S . 497‑‑Penal Code (XLV of 1860) , S . 376/34‑‑Offence of Zina (Enforcement of Hudood) Ordinance (VII of 1979), S. 10‑‑Bail, grant of‑‑Belated first information report‑‑Husband of victim lady had come to place of incident but no explanation given for not lodging report immediately which was natural consequence in view of the nature of case‑‑Only word of victim lady against accused and no independent witness existing to support her statement Final medical certificate also not made available in time‑‑When prosecutrix was examined three days later, no marks of violence were found on her person‑‑Accused entitled to benefit of element of doubt existing in case‑‑Bail granted in circumstances. 1986 P Cr. L J 2584 and 1985 P Cr. L J 658ref. Ghulam Asghar Abbasi for Applicant. Zawar Hussain Jafri, A.A.‑G. for the State. The applicant is challaned under section 376/34, P.P.C. and 6 of Zina (Enforcement of Hudood) Ordinance, 1979. The allegation against the applicant is that on 19‑2‑1987 at about sunset time, the buffaloes which were being grazed by Mst. Khanan Bibi waylaid towards Dhora and she followed the buffaloes for bringing back and she found three culprits namely applicant Ali Dino, Mevo, both brothers inter se armed with pistol and hatchet respectively. It is alleged that Ali Dino caught hold of victim woman and was dragged towards the house where Ali Dino is said to have outraged her modesty so also his brother Mevo. Her husband Jiwan came from the house and seeing him culprits are said to have made their escape good. This incident occurred on 19‑2‑1987 at 3‑30 p.m. The learned counsel appearing for the applicant has contended that there is delay in lodging the report. Also it is urged that the victim lady was medically said to have been examined on 23‑2‑1987 and there are no marks of violence found on her body. He has also contended that the memo. of place of occurrence is prepared on 24‑2‑1987 and the husband of the victim lady Jiwan Khan and P.W. Arz Muhammad were examined by the police on 24‑2‑1987 and this delay in recording of statement in the circumstances of the case and the nature of allegation being on the face of it unnatural as contended by the learned counsel. It is an admitted position that the two applicants are real brothers and the manner in which said incident is alleged makes a prosecution allegations unnatural and improbable. The learned counsel in support of this contention has placed reliance in the case of Liaqat Ali v. The State reported in 1986 P Cr. L J 2584 and also case of Muhammad Siddique v. The State reported in 1985 P Cr. L J

658. Mr. Zawar Hussain Jafri A . A . ‑G . appearing for the State has not controverted the factual aspect of the case argued by the applicant's Advocate and has admitted that although from the police record it appears that the latter to examine the lady and give certificate was addressed to the Medical Officer on 20‑2‑1987 but she appeared before the Medical Officer on 23‑2‑1987. I have considered the arguments of both the learned counsels. It is clear from the F.I.R. that the husband of the victim lady Jiwan Khan had come to the place of incident and there is no explanation for not lodging the report immediately which would be natural consequence in nature of the present case. Consulting the police record, it is admitted by the learned State counsel that there is only word of victim lady against the applicant and the final Medical certificate is not available till date although the incident is of 19‑2‑1987 and the lady was examined by the Medical Officer on 24‑2‑1987. The applicants were arrested on 21‑6‑1987 and for nearly three months they have remained in jail. The learned counsel for State has also frankly admitted that there is no independent witness in support of the contention of the victim lady. In view of the fact that excepting solitary statement of Mst. Khanan who is a married lady, there is no other evidence against the petitioner for committing Zina with her and the belated F.I.R. and the prosecutrix having been examined are three days and there are no marks of violence found on her person without expressing any opinion on merits of the case. I find in the facts and circumstances of the instant case, there is element of benefit to which the applicants are entitled it is extended to them. Criminal Bail Application No. 903 of 1987 is, therefore, granted and the applicants are directed to be released on bail in the sum of Rs.30,000 with one surety and P.R. in the like amount to the satisfaction of learned trial Court. M.Y.H./A‑172/K Bail granted.