MUSTAFA ALIAS BAGGI Versus THE STATE

ORDER

Mustafa alias Baggi petitioner has moved this petition for bail in a case registered against him under Article 10 of the Offence of Zina (Enforcement of Hudood) Ordinance, 1979.

2. The prosecution version is that on 24‑6‑1987 at 10‑00 a.m. Mst. Hafizan Bibi, unmarried daughter of Shera, was easing herself in a Chari field when the petitioner came there, and finding her alone, committed Zina‑bil‑Jabr with her. She raised alarm attracting her brother Muhammad Anwar and Farzand Ali son cf Siraj. They tried to apprehend the petitioner and grappled with him, but he succeeded in running away.

3. Learned counsel for the petitioner contends that there is inordinate delay in lodging the F.I.R.; the prosecutrix is a girl of easy virtue; and the petitioner has been falsely implicated on account of civil litigation between his maternal grandfather and the father of the prosecutrix. It is further submitted that the only independent witness, namely, Farzand Ali, has sworn affidavit that he had not seen the occurrence.

Learned State counsel has opposed the prayer for bail. He submits that the occurrence took place in broad daylight; the petitioner is named in the F.I.R. as the sole culprit; and vaginal swabs were found stained with semen, therefore, no ground for bail is made out.

4. I have considered the submissions made at the bar in the light of material available on the record. The occurrence allegedly took place on 24‑6‑1987 at 10 a.m. and the F.I.R. was lodged on 26‑6‑1987 at 6.00 p.m. The prosecutrix tried to explain the delay by saying that the relatives of the petitioner had been entreating not to proceed against him, but no decision could be arrived at. This explanation does not appear to be reasonable. She took yet another two days in getting herself medically examined. She was examined by Woman Medical Officer, T.H.Q. Hospital, Chunian, on 28‑6‑1987. The examination was painless, there was no fresh tear, no bleeding or vaginal discharge, the vagina admitted two fingers easily and hymen was absent. In the opinion of the doctor she was used to sexual act. The prosecutrix had also three blunt weapon injuries of four to five days duration. Prima facie, the delay in reporting the occurrence and the late medical examination represent an unsatisfactory feature of the prosecution.

Out of two eye‑witnesses named in the F.I.R., one is a real brother of the prosecutrix while the other, namely, Farzand Ali, has sworn affidavit to the effect that he had not seen the occurrence.

Learned counsel for the petitioner has produced photo copies of plaint and written statement in case titled "Mehroo v. Ali Muhammad and Shera" in support of the contention that civil litigation between Mehroo, the maternal grandfather of the petitioner, and Shera, father of the prosecutrix, is going on. Learned State counsel is not in a position to controvert this contention.

Keeping in view all the facts and circumstances of the case, particularly the inordinate delay in lodging the F.I.R. and late medical examination, I feel inclined to the view that a case for the enlargement of the petitioner on bail is made out. Consequently, I admit him to bail in the sum of Rs.25,000 with two sureties in the like amount to the satisfaction of A . C., Kasur.

S.A./M‑489/L ????????????????????????????????????????????????????????????????????????? Bail allowed.