LIAQAT ALI Versus THE STATE
ORDER
The petitioner Liaqat Ali, who is involved in a case F.I.R. No.268, dated 30-6-1994 for the offence under sections 10 and 16 of the Offence of Zina (Enforcement of Hudood) Ordinance, 1979, registered at Police Station Jahania District Khanewal, has filed this petition for the grant of post-arrest bail.
2. The occurrence leading to the registration of the case allegedly took place on 24-6-1994 at 9-00 p.m., when Mst. Sitara Bibi, who was a neighbour of the complainant, Mst. Parveen, came to her house and asked her to go out of home to answer a call of nature. The complainant accompanied her. When they were at' some distance from the village, Liaqat Ali, petitioner, and his co-accused, Noor Hassan, Ali Sher, Iftikhar and Riasat Ali, were present with the motor-cycle. Noor Hassan took her into clasp and made her to sit on the motor-cycle forcibly. She was threatened that if she made a noise, she would be done away with, with the result that she kept quiet. Mst. Sitara Bibi went back but the petitioner, Liaqat Ali, drove her away and brought her to a mango garden. Meanwhile, Iftikhar reached there, who stripped her of her clothes, felled her on the ground and raped her. The other accused also committed rape with her. All the accused did so for the whole night. This heinous offence was repeated, on the following day too.
3. The bail has been urged on the following grounds:--
"Firstly, that the matter was reported after about six days of the occurrence without any reasonable explanation; secondly, that the occurrence allegedly took place on 24-6-1994 while the complainant Parveen was medically examined on 6-7-1994; thirdly, that the Chemical Examiner's report was to the effect that the swabs were not stained with semen; . fourthly, that the petitioner, Liaqat Ali, was declared innocent by the Investigating Officer vide Zimni No.36, dated 12-12-1994, which finding was subsequently affirmed by the D.S.P./S.D.P.O. Sadar Khanewal vide Zimni No.40, dated 17-1-1995 in his supervisory investigation; and fifthly, that the medical examination revealed that the complainant, Mst. Parveen, was a woman of easy virtue.
4. I have heard learned counsel for the parties and perused the record carefully,
5. The fact that the petitioner was examined after 12 days of the occurrence adversely reflects upon the prosecution case. The Medical Officer, Dr. Zahida Khanum, when examined the complainant, Mst. Parveen, found:--
"No mark of violence on any part of body. Hymen torn. Tear old. No pain. No bleeding. Vagina admitted 2 fingers and even speculum very easily. Four vaginal swabs taken, sealed 'and sent to Chemical Examiner for detection if semen. In my opinion, she has been subjected to sexual intercourse."
The opinion of the Medical Officer that she was subjected to sexual intercourse appears to be conjectural for the reasons; first that no basis was furnished for the same and second that the report of the Chemical Examiner suggested otherwise. .
6. The material collected so far by the police bears testimony to it that the petitioner was declared innocent after searching inquiries at the spot. The fact that the petitioner was placed in column 3 (although in Zimni No.41 it has been wrongly mentioned as Column 4) sounds intriguing as there was no material with the Investigating Officer to hold so.
7. It may be observed that in such cases, an Investigating Officer is legally obliged to conduct the investigation in a discreet manner and should not implicate the persons named by the complainant/abductee taking her statement as a gospel truth. I feel that in this case, the opinion expressed by the Police Officers that the petitioner was innocent was based on sufficient material. The declaration of innocence of an accused shall be given sufficient weight unless it smacked of mala fides. Reliance in this behalf can be placed on Rehmatullah alias Rehman v. The State and another 1970 SCMR 299, wherein it was observed that:--
"This seems to us to be a case in which the guilt of the appellant certainly requires further investigation and inquiry to entitle him to bail under section 497(3) of the Criminal Procedure Code. The opinions of the Investigating Officers certainly do not constitute legal evidence, but being adverse to the prosecution, they put one on an inquiry as to the veracity of the prosecution case."
Keeping in view the facts enumerated above and the results of the investigations, I feel inclined to allow the petitioner to be released on bail on his furnishing bail bonds in the sum of Rs.30,000 (Rupees thirty thousand only) with one surety in the like amount to the satisfaction of A.C./Duty Magistrate concerned.
N.H.Q./L-103/L
Bail allowed.