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Criminal Petition for Special Leave to Appeal No. 57‑P of 1978, decided on 3rd August 1978.

(On appeal from the judgment and order of the Peshawar High Court, Peshawar, dated 5‑7‑1978, in Criminal Miscellaneous No. 324 of 1978).

(a) Criminal Procedure Code (V of 1898)‑

‑‑ S. 498‑Bail‑Prosecution evidence consisting of broken bangles of woman allegedly raped by accused, some injuries received by her on her arm and knee and some scratches received by accused on his cheek Chadar belonging to accused found by Chemical Examiner to be stained with semen also recovered from room where offence reportedly committed‑Sufficient material, held, existed on record to connect accused with crime and High Court rightly refused to grant bail to accused petitioner‑Penal Code (XLV of 1860), S. 376.‑[Rape.]

(b) Criminal Procedure Code (V of 1898)‑

S. 498 read with Penal Code (XLV of 1860), S. 376‑Rape‑Bail Various pieces of evidence connecting accused with commission of rape taken due notice of by High Court and prima facie High Court wholly right to come to such conclusion‑High Court having exercised its jurisdiction in line with well established principles, not open, held, to interfere with such order. [Rape.]

(c) Criminal Procedure Code (V of 1898)‑

S. 498 read with Penal Code (XLV of 1860), S. 376‑Rape‑Bail Court observations‑Observations in its order by High Court. "In this part of the country no woman, moreso when she is an unmarried girl, at the risk of her reputation, character and future life, would take upon herself in making such allegations as are available in F. I. R. unless it is true and she has been a victim of such animal lust"‑Held, should have been avoided by High Court‑Trial Judge advised to ignore such observations and to decide case strictly according to evidence.‑ [Court observation-------Rape.]

Sardar Akhtar Ali Haidri, Advocate and Noor Ahmad Khan, Advocate‑on -Record for Petitioner.

Nemo for the State.

Date of hearing :3rd August 1978.

.‑.The petitioner herein is presently facing trial under section 376/109, P. P. C. The allegation against him is that he committed rape upon Mst. Naeem Tahira at 4‑30 p. m. on 18‑3‑1978 in his house which was under construction.

The prosecution case is that Mst. Naeem Tahira and the sister of the petitioner, namely, Mst. Shabana were trainees in the Progressive Centre at Nowshera ; on the day of occurrence, both of them, after the Centre was closed for the day, started together for their respective houses on the way, however, Mst. Shabana took Mst. Naeem Tahira to the house of the petitioner which was under construction ; that at about 4‑30 p. m. Mst. Shabana, while leaving Mst. Naeem Tahira in a room of the said house with the petitioner, left for her own house that thereafter when the laborers, who were engaged in the construction of the said house also left, the petitioner chained the door of the room from inside and committed rape upon Mst. Naeem Tahira that soon thereafter when Mst. Naeem Tahira came to her house she reported the incident to her mother and when her husband (the father of Naeem Tahira) returned to the house at about 6 p. m., he proceeded to the Police Station and lodged the F. I. R. of the occurrence.

The order of the High Court would show that there existed on the record of the case sufficient material to connect the accused with the crime. ..Now this material consisted of the broken bangles of Mst. Naeem Tahira, some injuries received by her on her arm and knee and some scratches receiv ed by the petitioner on his cheek. The learned counsel for the petitioner has not disputed the correctness of these facts. Furthermore, from the very room where Mst. Naeem Tahira was raped was recovered the chadar belonging to the petitioner which according to the report of Chemical Examiner was found to be stained with semen. In view of these facts, the learned Judge in the High Court refused to grant bail to the petitioner.

The learned counsel for the petitioner has reiterated the same arguments before us which he had urged in the High Court. He contended that Mst. Naeem Tahira was major, was a consenting party and, therefore, it was wrong to hold that she had been raped. There is no force in this contention. The various pieces of evidence, to which we have already referred, were there on the record of the case and were taken due notice of by the learned Judge in the High Court. Prima facie, therefore, the learned Judge was wholly right to conclude that the petitioner was connected with the crime. In other words the learned Judge having exercised his discre tionary jurisdiction in line with the well-established principles it is not open to this Court to interfere with his order.

We agree with the learned counsel for the petitioner, however, that the learned Judge in the High Court should have avoided to observe that "ink this part of the country no woman moreso, when she is unmarried girl at the risk of her reputation, character and future life would take upon herself in making such allegations as are available in the F. I. R. unless it is true and she has been a victim of such animal lust". All that we can say in this connection, however, is that the learned trial Judge would ignore these observations and would decide the case before him strictly according to the evidence. This petition, therefore, fails and is dismissed.

Petition dismissed.

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