MUKHTAR AHMAD vs THE STATE and anothers

ORDER

' SAYYED MAZAHAR ALI AKBAR NAQVI, J.---By means of instant petition, Mukhtar Ahmad/petitioner has sought for his post-arrest bail in case F.I.R. No.8 of 2012, dated. 3-1-2012, offence under section 376, P.P.C., registered at Police Station, Millat Town, Faisalabad.

2. Briefly the prosecution case, as per contents of the F.I.R., is that on 2-1-2012 at 9-00 p.m, the petitioner entered the house of the complainant and forcibly committed zina with the complainant.

3. Learned counsel for the petitioner while opening his arguments submits that the petitioner is innocent and has falsely been involved in this case by the complainant against the actual facts and circumstances. Learned counsel for the petitioner further contends that there is delay of one day in lodging the F.I.R., which goes unexplained on the part of the prosecution. Learned counsel, for the petitioner further submits that the complainant is habitual in making frivolous applications against different persons including police officials. While referring to report of DSP, Circle Sargodha Road, Faisalabad, available on the record as 'Annexure-B', learned counsel submits that the same was moved by the complainant against Arshad Chatha, A.S.-I., and Muhammad Mudassar, her own husband, which subsequently was found false, detail occurrence has been mentioned in the same. Learned counsel next urges that keeping in view the report of the DSP, it can easily be ascertained that the complainant has got lodged the instant case, too, with ulterior. Motives. It is argued on behalf of the petitioner that the complainant/alleged victim of the instant case is a married woman having three children; one son and two daughters. Learned counsel further argues that while medically examining the complainant, the doctor has not observed any mark of violence or any sign of resistance. It is next contended on behalf of the petitioner that ever the less the report 'of the Chemical Examiner is positive but neither DNA test was conducted nor semen grouping has been done in the instant case and in the absence of such reports, case against the petitioner squarely becomes one of further inquiry into his guilt falling within the ambit of section 497(2), Cr.P.C. And he is entitled to the concession of bail.

4. As against above, learned Deputy Prosecutor-General assisted by learned counsel for the complainant opposes this petition with vehemence mainly on the ground that the petitioner is nominated in the F.I.R. And there is specific allegation of zina against him. Learned counsel for the complainant urges that report of Chemical Examiner qua vaginal swabs is also positive and during the course of investigation the petitioner has been found guilty. It is finally submitted on behalf of the complainant that challan in the case has already been submitted before the learned trial court as case against the petitioner is of heinous nature, which is also covered within prohibition contained in subsection (1) of section 497, Cr,P.C. As such he is not entitled to the concession of bail.

5. Arguments advanced pro and contra have been heard. I have also gone through the record available on file.

6. Nevertheless the petitioner is named in the F.I.R., however, I am afraid this Court has to see from the facts and circumstances whether case against the petitioner to the extent of grant of bail is made out or not. Admittedly the matter was reported to the police with a delay of one day, which goes unexplained on the part of the complainant/prosecution. Moreover, it is also an undisputed fact that the complainant/victim of the instant case is a Married woman having three children.

Though the report of the Chemical A Examiner qua vaginal swabs is positive but neither DNA test was conducted nor semen grouping has been clone in the instant case to ascertain involvement of the petitioner and in such circumstances semen found on the vaginal swabs of the victim/complainant loses its evidentiary value. Respectful reliance in this regard is placed on the dictum of law laid down in the case of Mst. Ehsan Begum v. The State (PLD 1983 FSC 2041 wherein it has been held as under:-- "----S.10---Accused (man and woman) allegedly staying in hotel---Name of man written in hotel register, butnothing in evidence of witnesses showing' that woman was with him or stayed in hotel---Evidence of witnesses in absence of such identification, of no consequence accused stated to have again stayed in another Hotel but not proved---- Commission of offence of Zina not proved by evidence of eye-witnesses or circumstantial evidence---Report of Chemical Analyser and semen stained Shalwar not relevant as woman being married and had been with her husband till 3 days before her arrest----Grouping of accused's semen not done for matching-- Conviction under S.10 set aside in circumstances of case".

' Moreover, in the case of Abid Javed alias Mithu v. The State (1996 PCr.LJ 1161), it was further held that:-- ---S. 10---Appreciation of evidence--- Where semen of accused not sent to Serologist for semen grouping, semen found on vaginal swabs was of no evidentiary value----Semen found on the vaginal swa bs of the 'victim loses its evidentiary value if the semen of the accused is not obtained and got examined and matched with semen found on vaginal swabs by the Serologist".

' Similar view was also affirmed in the cases of Waqar-ul-Islam and another v. The State (1997 PCr.LJ 1107) and Muhammad Aslam v. Shakeel Liaqat and others (2006 SCM R 348).

' On medical examination of the complainant/ victim of the instant case, the doctor has observed no mark of violence or any sign of resistance at the part of the victim of the case, who even otherwise is a matured lady, mother of three children. In this backdrop culpability of the petitioner would be determined during the course of trial after recording the prosecution evidence. All the above facts and circumstances when put side-by-side make the prosecution case against the petitioner one of further inquiry falling within the purview of section 497(2), Cr.P.C. The petitioner is behind the bars since the date of his arrest and investigation being complete his corpus is no more required by the police for further investigation. Further detention of the petitioner behind the bars would not serve any useful purpose.

7. For the foregoing reasons this court is persuaded to believe that the petitioner has made out a case for his enlargement on post-arrest bail. Consequently, the instant petition is allowed and the petitioner is admitted to bail" after arrest 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.

Bail, granted.