2015 P Cr (PLP)

SHAHID HAMEED DAR, J.

The petitioner, Rashid Ahmad seeks release on bail by way of suspension of his sentence awarded to him by the learned Additional Sessions Judge, Piplan (Mianwali), vide judgment dated 29-1-2015, whereby he was convicted under section 496-B, P.P.C. and sentenced to rigorous imprisonment for five years along with fine of Rs.10,000, in default whereof to further undergo simple imprisonment for one month with benefit of section 382-B, Cr.P.C. He was originally indicted for an offence under section 376(2), P.P.C. in a private complaint-case, filed by Mst.Rabia Bibi (prosecutrix), after she felt dissatisfied with the investigation of case FIR No.69/11, dated 9-4-2011, under section 376(2), P.P.C., Police Station Piplan (Mianwali).

2. After hearing the learned counsel for the parties and perusing the record, it is observed that Mst. Rabia Bibi (P.W.4) moved a written application (Exh.DA) before the police for registration of FIR (Exh.C.W.1/A) with the allegation that she on receipt of a telephone call went to see Muhammad Rafique accused, who took her to the dera of Malik Rashid Ahmad (petitioner) where they both committed rape on her one by one; on arrival of her family members at the spot, the accused/petitioner and his co-accused managed to push the prosecutrix out of their dera through the backdoor and then they dropped her at a place, which was near the house, where she and her other family members had been invited to as guests in a marriage ceremony; this is how the prosecutrix returned to the said house.

3. She filed a private complaint whereby she disowned and discarded the story of FIR (Exh.CW-1/A) with the contention that three accused including Rashid Ahmad (petitioner) being armed with firearms forcibly abducted her at about 9-00 p.m. on 7-4-2011 and they took her to their dera where two of them including the petitioner committed zina with her, one by one; her father and others reached the dera of the accused and rescued her from their clutches.

4. The story as contained in the FIR categorically showed that it was a consenting affair between the unmarried prosecutrix and the accused, whereas in the private-complaint-case she was shown to have been raped by the accused. Learned trial Court rightly observed in paragraph 12 of the impugned judgment that there were two different stances of the prosecution, one contained in the FIR (Exh.C.W.1/A) and the other in the private complaint-case, which allegations-wise, were miles apart inter se. In paragraph l8 of the impugned judgment, it has been observed that the prosecutrix was a consenting party to the whole affair and she enjoyed sex with the accused of her free will; she herself went to the dera/baithak of Rashid Ahmad accused (petitioner) in the company of Muhammad Rafique accused, where she involved herself in sex play with them; she left the dera/baithak of the accused silently through the backdoor/window and at no stage she felt like raising the alarm; the contention of the prosecutrix as contained in the private complaint-case was not correct and the one, she mentioned in the FIR was credible. Learned trial court concluded in the said paragraph that it was not a case of rape punishable under section 376(2), P.P.C. but it was a case of fornication punishable under section 496-B, P.P.C. 4(sic.) It would be an interesting question to deal with, at the time of final adjudication of the titled appeal, whether only a male person could be convicted/sentenced for the charge of fornication and the female could be believed as a witness against the male-partner in such a situation. The petitioner was taken into custody by the police on 29-1-2015, after pronouncement of the impugned judgment and he has been languishing in jail since then. His continued incarceration may not be of any consequence to the prosecution case. Therefore, this application is allowed and sentence of the petitioner is suspended. He is directed to be released from the prison subject to furnishing bail bonds in the sum of Rs.5,00,000 (five lacs) with two sureties each in the like amount to the satisfaction of the learned trial Court. He shall appear before this court on each and every date of hearing of the main appeal. MH/R-25/L Sentence suspended.