MUHAMMAD ASHIQ alias BHAP vs THE STATE

ORDER

' M. BILAL KHAN, J.---Muhammad Ashiq alias Bhap son of Muhammad-Sadiq the petitioner, by filing the instant petition seeks post-arrest bail in case F.I.R. No,132, dated 3-6-2005, registered at Police Station Kanganpur, District Kasur for an offence under section 10 of the Offence of Zina (Enforcement of Hudood) Ordinance No,VII of 1979.

2. The case of the prosecution as it unfolded in the F.I.R.Registered at the instance of Abdul Ghafoor son of Bashir Ahmad, the complainant, was that he was a labourer and on 20-5-2005 he was not present at his house; his mother had gone to Khudian to fetch medicines and his sister Mst. Surraya Bibi was present in the house all by herself, at 12-00 noon, Amanat Ali knocked at the door of the house; his sister Mst. Surraya Bibi opened the door, whereupon Amanat Ali asked as to where her mother was; on being told that she had gone to fetch medicines, he went back and informed Muhammad Ashaq (the petitioner) that Mst. Surraya Bibi was alone in the house; then the petitioner effected his entry into his house through the roof and dragged Mst. Surraya Bibi forcibly inside the house; he extended threats of life to Mst. Surraya Bibi and started committing Zina with her; Mst. Surraya Bibi raised noise and started crying, which attracted Muhammad Ashraf son of Muhammad Sharif and Muhamad Anwar son of Akbar Ali, who came inside and found Mst. Surraya in an unsettled condition; the petitioner succeeded in escaping by climbing over the wall; the occurrence was witnessed by Muhammad Ashraf and Muhammad Anwar P. Ws. The accused persons have been trying to bring about compromise, which could not materialize. Resultantly, the instant F.I.R. Had been recorded.

3. After his arrest, the petitioner applied for his post-arrest bail,which had been turned down by the learned Additional Sessions Judge, Chunian, District Kasur vide order dated 6-12-2005. Hence, the instant petition.

4. I have heard the learned counsel for both the sides at considerable length and have also gone through the record brought by Muhammad Jaffar A.S.-I.

5. It has been noticed that there is a delay of fourteen days in lodging the F.I.R., which does not appear to have been convincingly explained by the complainant. The report of the Chemical Examiner is in the negative and the vaginal swabs as also the clothes of the victim have not been found to be stained with semen. According to the Medico-legal report also, no sign of any injury was present on the person of the victim. Hymen was absent and vagina admitted two fingers easily. Another important aspect of the case, which appears to have escaped notice of the learned Additional Sessions Judge was that the mother of the present petitioner had died as a result of having been hit by a speedy tractor in July, 2003, for which a case had been registered at Police Station Kanganpur, District Kasur for an offence under section 322, P.P.C. And the accused in the said case was Muhammad Amin son of Muhammad Sharif, a real brother of Muhammad Ashraf, P.W. In the instant case. The possibility that the petitioner has been falsely implicated in this case with a view to settle some previous scores cannot outrightly be brushed aside. Keeping in view the facts and circumstances revolving around the matter, especially the delayed F.I.R., the negative report of the Chemical Examiner and the criminal case against the brother of Muhammad Ashraf P.W., the case of the petitioner becomes one of further inquiry within the meanings of subsection

(2) of section 497, Cr.P.C.

6. Resultantly, this petition is allowed and the petitioner is admitted to bail subject to his furnishing bail bonds in the sum of Rs,50,000 (Rupees fifty thousand) with one surety in the like amount to the satisfaction of the learned trial Court.