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Criminal Miscellaneous No. 953‑B of 1985, decided on 29th April, 1985.

‑‑‑S. 497‑‑Offence of Zina (Enforcement of Hudood) Ordinance (VII of 1979), S. 10‑‑Bail‑‑Statement of victim supported by eye‑witnesses during investigation‑‑Affidavits to contrary by witnesses at later stage‑ Police at no stage of investigation, finding accused to be innocent‑‑Marks of violence found on person of victim‑‑Medical evidence and report of Serologist corroborating victim‑‑Contentions of accused requiring deeper appraisal of facts‑‑Accused, held, was not entitled to bail in circum stances.

Ch. Muhammad Farooq for Petitioner.

Sh. Jamal Din for the State.

This is a petition for bail by Zulfiqar Ali, an accused under section 10 Ordinance VII of 1979 which arose out of dated 27‑11‑1984 Police Station, Satrah, District Sialkot.

2. Ghulam Rasul complainant lodged the report at police station on 27‑11‑1984 at 9‑05 p.m. regarding an occurrence which took place on the morning of 26‑11‑1984. It was stated by him in the F.I.R. that Mst. Parveen Kausar was his niece. On the morning of 26‑11‑1984 she was returning home from the fields after easing herself. When she reached near the Haveli of Ghulam Sarwar (father of the petitioner), she found Zulfiqar petitioner present in the door. He forcibly clasped Mst. Parveen Kausar. He took her inside his Haveli and committed rape on her. The alarm attracted Muhammad Riaz and Muhammad Sadiq P.Ws. The accused ran away from the spot. Mst. Parveen Kausar went back to her house and informed about the occurrence to Ghulam Rasul complainant. He, however, could not go to the police station immediately firstly because his brother Muhammad Ali (father of Parveen Kausar) was sick and secondly because on account of death of his mother about 8/9 days earlier many persons were coming to his house for condolence. After registration of the case the police undertook investigation and got Mst. Parveen Kausar medically examined on 28‑11‑1984 at 1‑30 p.m. The W.M.O. recorded an abrasion at the front of right knee joint 2 x 2 c.m. under injury No. 1, en abrasion 2 x 1.5 c.m. below the right knee joint at anterior half under injury No. 2, a contused swelling 3 x 3 c.m. at medial side of left knee joint under injury No.3 and multiple abrasions at front of left knee joint under injury No. 4. On examination of private parts she found the vagina healthy, which could admit two fingers with difficulty The hymen was found freshly torn. Three Vaginal swabs were sent to the Chemical Examiner. In her opinion Mst. Parveen Kausar aged 15 years had been subjected to sexual intercourse. The three vaginal swabs according to the report of Chemical Examiner, dated 2‑1‑1985 were found to be stained with semens. The Shalwar of Mst. Parveen Kausar was also sent to the Chemical Examiner and the same was found stained with semens vide report, dated 5‑12‑1984. The accused was arrested. The challan has so far not been, filed in Court.

3. The petitioner filed an application for his bail which was dismissed by the learned Additional Sessions Judge, Sialkot, on 17‑4‑1985. Hence this petition.

4. I have gone through the record of this case. I have also gone through the case diary and have heard the learned counsel for the petitioner as well as the State at great length.

It is contended by the learned counsel for the petitioner that Muhammad Riaz and Muhammad Sadiq P.Ws. do not support the prosecution case and have sworn affidavit to the effect that they did not see the occurrence; that one Mr. H. James, a respectable of the village, has sworn an affidavit in support of the innocence of the accused; that the police came to the conclusion that the case against the petitioner was doubtful; and that the medical evidence did not corroborate Mst. Parveen Kausar, the alleged victim of rape. It is, therefore, argued that the petitioner be allowed bail till the disposal of the case. The learned counsel for the State has opposed this petition.

5. I have considered the above contentions. The affidavits of Muhammad Riaz and Muhammad Sadiq P.Ws. do not in any way advance the case of the petitioner for bail. It appears that the prosecution evidence has been and is being tempered with on behalf of the accused. I am, therefore, not prepared to accept these affidavits specially when Mst. Parveen Kausar and her uncle Ghulam Rasul complainant are fully supporting the prosecution case. These two witnesses supported Mst. Parveen Kausar during investigation but on 26‑1‑1985 and 27‑3‑1985, respectively made statements in favour of the accused. I have gone through the report under section 173, Cr.P.C. as well as the case diary. The police at no stage of investigation found the petitioner innocent. In the concluding part of the report under section 173, Cr.P.C. the police found that toe prosecution case is supported by strong ocular evidence, medical evidence and the reports of the Chemical Examiner. It was further stated in this report that as the complainant did not accept the oath of Mr. H. James, therefore, nothing can be opined with certainty. This opinion does not mean that the accused was found innocent. The medical evidence indicate scratches on the body of Mst. Parveen Kausar. The hymen was found to be freshly torn at the time of medical examination of Parveen Kausar. The view of the W.M.O. that by fresh she meant 6/7 days cannot be accepted at this stage. All the contentions raised by learned counsel for the petitioner in support of this petition pertained to deeper appraisal of the facts of the case which cannot be gone into tit this stage.

6. In view of the above, I do not think that the case of the petitioner is that of further enquiry. There is no merits in this petition which is accordingly dismissed.

S.A. Petition dismissed.

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