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Criminal Miscellaneous No. 2580-B of 1982, decided on 5th December 1982.

----S. 497 (5)-Witness-Persons neither eye-witnesses to occurrence nor to alibi but only respectables of area and giving assurance as to innocence of petitioner, Held, At most witnesses to good character of petitioner.

------S. 497 (5)-Bail, grant of -Chemical Examiner's report as to presence of semen being awaited while petitioner in custody for last 31 months-Bail allowed, in circumstances.

Mian Ghulam Rasool for Petitioner.

Imtiaz Ali Chaudhry for the State.

Riaz Ahmad, petitioner al alongwith Akram and Allah Tawakal, are accused of the offence under sections 10/11, Offence of Zina (Enforcement of Hudood) Ordinance, 1979. The case was registered against them at Police Station War Burton, District Sheikhupura on 1st August, 1982.

2. The F. I. R. in this case was made by Bashir Ahmad father of the prosecutrix two days after the occurrence alleging that his daughter had been raped by the petitioner and his two companions in the maize field. Explaining the delay in reporting the matter, it was alleged that the accused were influential and had persuaded him not to make the report. He, therefore, made an application before the higher Authori ties on the basis of which the case was registered. Learned Additional Sessions Judge allowed bail before arrest to Tawakal without passing a detailed order. It was simply a three line order. Confirming the bail, learned Additional Sessions Judge, has said that since the police found Tawakai innocent the interim bail allowed to him is therefore, confirmed. I sent for the order allowing interim bail and found that too was not a detailed order. Since the learned Additional Sessions Judge has not dis cussed the facts on the basis of which the police had come to the conclusion that Tawakal was innocent, I therefore, deemed it proper to issue notice to Tawakal as to why his bail should not be cancelled. My this order will dispose of both the matters.

3. This case was investigated by two police officials. Hameed Ahmad, S. I., who was final incharge of the case has appeared before me and said that Ch. Muhammad Siddique, A. S. I., who bad investigated the case also found Tawakal innocent. According to the S.I. Tawakal had been roped in because Tawakal is a member of one of the rival groups of Zamindar in the village. There had been a previous criminal litigation between these two rival groups. According to the S. I., it also transpired, during investigation, that on the day of occurrence, certain visitors had come from village Feroze Watwan to visit Tawakal and they spent his day with him. These visitors of Tawakal were also examined during investigation, in support of his defence. According to the investigation, the complainant had named four respectable persons of the opposite faction and said that if these four persons vouchsafed for the innocence of Tawakal, he would drop his accusa tion against him. Since these four respectables assured about the innocence of Tawakal, this was another reason with the investigating officer to find Tawakal innocent. I am not inclined to accept this as a reason which should weigh with the investigating officer because these four respectables are neither eye-witnesses nor witnesses of alibi. At the most the value of their statement cannot be more than the statement of a witness who gives good character to the accused. During the investiga tion, it -is the duty of the investigation agency to examine these witnesses A who have either seen the occurrence or who can depose about any circumstances which may be relevant in determining the guilt or the innocence of the accused. Keeping in view the fact that. it was a belated F. I. R. and there are not less than nine cases against the complainant coupled with the fact that the investigating officer examined four visitors of Tawakal who had come from another village, I therefore, do not consider it a fit case for cancellation of bail of Tawakai.. Notice sent to him is withdrawn.

4. In so far as the bail petition of Riaz is concerned, it may be B mentioned that the Chemical Examiner's report has not so far been received in this case, although, the petitioner is in custody for the last 32 months. He is allowed bail in the sum of Rs. 10,000 (Rs. Ten thousand) with two sureties each in the like amount to the satisfaction of A/C Duty Magistrate, Sheikhupura.

Bail allowed.

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