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Criminal Miscellaneous No.1153/B of 1986, decided on 7th March, 1987.

---S.497(5)--Offence of Zina (Enforcement of Hudood) Ordinance (VII of 1979), S.10--Pre-arrest bail, cancellation of Prosecution married woman--No marks of violence found on her person--Delay of 4/5 days -wadding F. I. R.--Accused, a teenager--No specific evidence of in potent and capable of performing sexual intercourse--accused chemical Examiner regarding swabs, explainable- -Mala fides Report of Catenation agitated even during investigation Special on part of prose exercise of discretion in favour of accused, features justifying bail refused in circumstances existing--Cancellation of

Sultan Alam for Petitioner.

M.R. Khalid for Respondent.

Moin-ud-Din Chaudhry for the State.

Date of hearing: 7th March, 1987.

JUDGMENT

Allah Ditta petitioner has moved this petition under section 497(5), Cr.P.C. praying that pre-arrest bail granted to Zahoor alias Zahoora respondent who is accused of offence of zina, by learned Sessions Judge, Khanewal, vide order dated 8th November, 190 may be cancelled.

2. Allah Ditta petitioner reported at Police Station Khanewal on 19th October, 1986 about 4/5 days earlier that he and his wife went out for cutting grass, leaving their daughter Mst. Parveen at home. On their return at 12 noon she told them that Zahoor, respondent having trespassed into the house by scaling over the wall had committed ina-bil-Jabr with her at the point of knife. Muhammad Rafiq and Tahir PWs. were attracted at her alarm. Seeing them, the respondent ran away. He (complainant) explained that under threats of the respondent, an influential person he was obliged to lodge the FIR so late.

3. The prosecutrix was medically examined by W.M.O. Civil Hospital Jahania on 20-10-1986. Lady doctor found her a normal healthy looking woman having no mark of injury on her body and private parts etc. Her hymen was absent vagina admitted two fingers. Vaginal swabs were taken and sent to the Chemical Examiner for detection of semen. The lady doctor postponed her opinion till the receipt of Chemical Examiner as to whether sexual intercourse had been committed with the prosecutrix or not Certified copy of the medico-legal report has been produced by the petitioner's counsel today which bears an endorsement that the swabs were stained with semen. It is noteworthy that the lady doctor has not yet given any opinion that Mst. Parveen Akhtar (a married woman) was subjected to rape or not

4. The respondent applied for pre-arrest bail before Sessions Judge. It was argued before him that there was five days delay in lodging the FIR without an satisfactory explanation; that the medical evidence, does not support the prosecution case; and that the respondent had protested against visits of Tahir Ahmad PW to complainant's house which annoyed the petitioner and therefore, he concocted the instant case against him. Learned Sessions Judge having been influenced by the fact that FIR was lodged with delay, granted pre-arrest bail to the respondent. Feeling aggrieved thereby the instant petition has been filed.

Sultan Alam for Petitioner.

M.R.Khalid for Respondent.

Moin-ud-Din Chaudhry for the State.

Date of hearing: 7th March, 1987.

Allah Ditta petitioner has moved this petition under section 497(5), Cr.P.C. praying that pre-arrest bail granted to Zahoora alias Zahoora respondent who is accused of offence of zina, by learned Sessions Judge, Khanewal, vide order dated 8th November, 19b 6 may be cancelled.

2. Allah Ditta petitioner reported at Police Station Khanewal on 19th October, 1986 about 4/5 days earlier that he and his wife went out for cutting grass, leaving their daughter Mst. Parveen at home. On their return at 12 noon she told them that Zahoor, respondent having trespassed into the house by scaling over the wall had committed zina-bil-Jabr with her at the point of knife. Muhammad Rafiq and Tahir PWs. were attracted at her alarm. Seeing them, the respondent ran away. He (complaint) explained that under threats of the respondent, an influential person he was obliged to lodge the FIR so late.

3. The prosecutrix was medically examined by W.WO. Civil Hospital Jahania on 20-10-1986. Lady doctor found her a normal healthy looking woman having no mark of injury on her body and private parts etc. Her hymen was absent, vagina admitted two fingers. Vaginal swabs were taken and sent to the Chemical Examiner for detection of semen. The lady doctor postponed her opinion till the receipt of Chemical Examiner as to whether sexual intercourse had been committed with the prosecutrix or not Certified copy of the medico-legal report has been produced by the petitioner's counsel today which bears an endorsement that the swabs were stained with semen. it is noteworthy that the lady doctor has not yet given any opinion that Mst. Parveen Akhtar (a married woman) was subjected to rape or not

4. The respondent applied for pre-arrest bail before Sessions Judge. It was argued before him that there was five days delay in lodging the FIR without an satisfactory explanation; that the medical evidence, does not support the prosecution case; and that the respondent had protested against visits of Tahir Ahmad PW to complainant's house which annoyed the petitioner and therefore, he concocted the instant case against him. Learned Sessions Judge having been influenced by the fact that FIR was lodged with delay, granted pre-arrest bail to the respondent. Feeling aggrieved thereby the instant petition has been filed.

5. I have heard learned counsel for the parties at length as well as for the State and perused the record.

6. It is contended on behalf of the petitioner that the learned Sessions Judge illegally granted pre-arrest bail to the respondent as it was neither stated by the respondent in his application nor the learned Sessions Judge has held that the complainant had got the case registered mala fidely. He further argued that mere delay in lodging the FIR does not constitute a legal ground for allowing pre-arrest bail to the respondent who is accused of such a heinous offence. He has relied on Muhammad Tahir Mahmood v. The State 1983 P Cr. L J 1654; Muhammad Sarwar v. The State 1986 P Cr. L J 1383; Muhammad Shah v. The State 1982 P Cr. L J 124; Ali Muhammad v. Yamin and another 1981 S C M R 1139 and Muhammad Safdar v. The State 1983 S C M R 645.

7. Learned counsel for the respondent has argued that the respondent is a teenager boy, he is not influential Zamindar and is rather a landless person as testified by the Halqa Patwari in his report. The doctor has not opined in his report dated 24-10-1986 made on the application of the police that the respondents as fit to perform sexual intercourse. It is also stated that the respondent in his application moved for bail before arrest in the Court of Sessions judge on 2U-1o- 1986 has specifically mentioned that the case against him was based on party faction and enmity. Learned counsel particularly referred to the case diary dated 3rd November, 1986 showing that number of persons appeared on behalf of the respondent and deposed about his innocence and termed the case as false which was to be the outcome of differences which arose between the father of the prosecutrix and Ghulam Shah, father of the respondent over the sale of an Ihata i.e., the latter had purchased Ihata from the former for a sum of Rs.9,000 and because Tahir Ahmad, one of the witnesses in this case, offered more money for the same, therefore, Allah Ditta petitioner wanted his Ihata back from Ghulam Shah who did not agree.

8. I have carefully considered the contentions of the learned counsel for the parties in the light of record and the case-law cited at the bar. In Muhammad Tahir Mahmood's case the accused was refused bail as the prosecutrix in that case found to be highly respectable lady and her version also found support from medical evidence and the incident which took place at night time was reported to the police the very next morning. Likewise in Muhammad Sarwar's case, the accused was declined bail as there was only one day's delay in lodging the FIR and the prosecutrix in that case was unmarried girl and the allegation of rape was corroborated by the medical evidence. Muhammad Shah etc. petitioners in the case reported as 1982 P Cr. L J 124, were declined concession of pre-arrest bail because their conduct in coming to the Court with unclean hands was found to have disentitled them for the grant of such concession. In Ali Muhammad's case Yamin respondent was allowed pre-arrest bail in a case under section 302, PPC by the High Court which was cancelled by their Lordships of the Court with the remarks that he has failed to show that his arrest was intended for ulterior motives (by prosecution or police). In Muhammad Sardar's case their Lordships of the Supreme Court declined bail before arrest to the petitioners who were accused in case under sections 148,324 and 325, PPC because they failed to show that they were to be arrested for some ulterior motive on the part of the authorities or other influential persons, or there were some peculiar features of the case justifying the exercise of discretionary power by the High Court or the Sessions Court.

9. It would be seen that all the aforementioned authorities obviously proceed on materially different facts than those of the case in hand. It may be noted that the prosecutrix in this case is a married woman. No mark of violence was found on her person. There is delay o about 4/5 days in lodging the FIR. In the absence of specific report by the doctor that the respondent is potent and capable of performing sexual intercourse, report of Chemical Examiner showing swabs o the prosecutrix as stained with semen is explainable. i.e., that she might have co-habited with her husband before her medical examination. Furthermore the mala fides on the part of the prosecution has be agitated during tire investigation. It has been so stated by the respondent in his application moved before the lower Court. The impugned order shows that mala fide on the part of the prosecution was argued before the learned Sessions Judge but learned Session Judge of course, did not express his opinion for or against the same.

10. It is true that bail before arrest is not allowed as a matter of course in cognizable cases but where the Court finds that the appellant's arrest is tainted with mala fides then this relief can be granted. As stated above the facts like delay in FIR, the medical evidence not providing corroboration to allegation of rape and the evidence of enmity, existing between the parties has been brought on record, in my view, do constitute special features justifying exercise of discretion in favour of the respondents by learned Sessions Judge. Consequently, I find no merit in this petition and dismiss the same.

S.A./A-103/L Petitions dismissed.

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