' MUHAMMAD FARRUKH MAHMUD, J.--- This petition is directed against the order dated 6-2-2008 handed down by the learned Judge in Chambers, Lahore High Court, Lahore in case F.I.R. No,289 of 2006 dated 13-12-2006 registered under section 10 Offence of Zina (Enforcement of Hudood)
Ordinance VII, 1979 at Police Station "B" Division, District Gujrat whereby the application of petitioner seeking cancellation of pre-arrest bail granted to Majid Baig alias Bobby Pehlawan- respondent/accused was dismissed.
2. The relevant facts are that the above noted F.I.R. Was registered at the instance of Mst. Yasmin Butt petitioner wherein it was alleged that on 4-12-2006 at about 4 p.m., Mirza Majid Baig alias Bobby Pehlwan son of Abdul Rasheed trespassed into the house of complainant in her absence. He locked Raj, Sanam and Haider etc. Children of the complainant in a room and thereafter took Mst.
Shaista aged 20 years, who was un-married, to a room on the strength of his .30 bore pistol and committed rape with her. Mst. Shaista did not report the matter to the complainant, immediately, due to fear and shame. However, the complainant noticed the falling health of her daughter and inquired about the matter. On complainant's insistance, Mst. Shaista narrated the tragedy to the complainant who took the matter before Punchiat i.e, gathering including Mirza Majid Baig- respondent and his other family members. The relatives and the members of the Punchait did not help the complainant, hence, she reported the matter to the police on 13-12-2006.
3. Mirza Majid Baig-respondent/accused moved an application seeking pre-arrest bail in the instant case which was heard and decided in his favour by Ch. Ghulam Rasool, Additional Sessions Judge, Gujrat vide order dated 1-12-2007. The learned Additional Sessions Judge granted pre- arrest bail to the respondent mainly on the following grounds:-
(1) There was a delay of 10 days in lodging the F.I.R.
(2) The medical officer posted in ABS Hospital, Gujrat did not find any sign of violence on the body of the victim and that the medical officer found the hymen intact.
(3) The swa bs collected were found to be not stained with semen.
(4) The Me 'cal Board, who subsequently examined the victim opined at hymen was intact and there was no violence on the body.
(5) That on the basis of medical evidence, the local police recommended cancellation of the case and that the conclusion arrived at by the second investigation which was conducted by the Range Crime Branch, Gujranwala, was not based on any fresh evidence, hence, the opinion of the second Investigating Officer-that the respondent should 'face trial was not of much value.
' Feeling aggrieved, the petitioner challenged the bail granting order before the learned High Court.
The learned Judge in Chambers dismissed the application of 'the petitioner mainly on the grounds that the two investigations conducted in the case were at variance and that the allegations levelled by victim Mst. Shaista were not established by the medical evidence as according to medical evidence the hymen was intact and no semen was detected. Hence this petition.
4. The learned counsel for the petitioner has submitted that both the Courts below have not considered the principles governing pre-arrest bail as laid down by this Court and the complainant as well as the victim had no motive to falsely implicate the respondent; that the victim was unmarried daughter of the complainant who was raped/by the respondent who was armed with a .30 bore pistol and that the respondent who was a very influential person succeeded in obtaining favourable report from the doctor and the local police.
5. Conversely, the learned counsel appearing on behalf of the respondent Mirza Majid Baig has submitted that the case was false. The learned counsel in this regard referred to the two medico- legal reports already mentioned above. Furthermore, he argued that the respondent was involved in this case mainly for the reason that the complainant wanted to marry Mst. Shaista with the respondent against his will and that the charge has been framed and case was fixed for r4corcling of evidence, so instead of cancelling the bail at this stage, the 'earned trial Court be ordered to conclude the trial expeditiously.
6. The learned Deputy Prosecutor-General Punjab appearing on behalf of State has submitted that it was not a case of pre-arrest bail and that the learned Courts below have not followed the principles laid down by this Court on that regard like mala fide on the part of the complainant or the victim and un-justified arrest of the respondent.
7. We have heard the learned counsel for the parties at length and perused the available record.
The reasons for delay in lodging the F.I.R. Have been mentioned in the F.I.R. Itself. In such-like cases the victims and their parents think several times before reporting the matter to take police, as unfortunately it becomes difficult to marry the victim respectably after the tragedy. The learned trial Court has mentioned that no marks of violence were observed on the person of the victim, however, the learned Judge completely overlooked the fact that the accused was armed with a .30 bore pistol and had frightened the poor victim to the extent that resistance was, perhaps, not possible. During investigation statements of Mst. Shaista-victim were recorded under sections 161 and 164, Cr.P.C., wherein she gave the details of the occurrence and fully implicated the respondent-accused. As far as the report of medical officer dated 14-12-2006 is concerned, it was mentioned therein at Sr.No,6 that the hymen was intact having normal size and size of opening was tip of finger while according to the opinion of the Medical Board which examined the victim on 3rd January, 2007, the vagina admitted two fingers. The factum of the admission of two fingers, prima facie, supports the story of the victim and the non-detection of semen would not benefit the accused at this stage as only penetration was enough to constitute the offence. The above noted variance in the medical report, prima facie, shows that the medical officer who initially examined the victim was approached by the accused. The application of the respondent seeking pre-arrest bail in the case is available on the record. Perusal of the same reveals that the mala fide on the part of complainant or the victim was not even alleged nor it was mentioned in it as to why he was involved in this case. In the case of Murad Khan v. Fazal-e-Subhan and another PLD 1983 SC 82 after considering number of cases this Court laid down the guiding principles for grant of pre- arrest bail. The relevant head note is being reproduced:--- "---S. 498-A---Pre-arrest bail---Conditions for grant of pre-arrest bail: arrest being for ulterior motives such as humiliation and unjustified harassment, prosecution motivated by motive so as to cause irreparable injury to reputation and liberty, motivation of Police on political consideration--- Counsel unable to satisfy Court with regard to the condition of mala fides of intended arrest, case, held, not fit for grant of anticipatory bail."
8. We are constrained to observe that the learned Judge in Chambers and the learned trial Court failed to consider the guiding, principles relating to pre-arrest bail, hence, we allow this petition by converting it into appeal. The order dated 1-12-2007 whereby the pre-arrest was granted by the Additional Sessions Judge to the respondent and the order dated 6-2-2008 of the learned Judge in Chambers, Lahore High Court, Lahore, whereby the application of the petitioner seeking cancellation of the ,bail was dismissed, both are set aside. However, the observations made by us are only tentative in nature and relate only to the question of pre-arrest bail. The learned trial Court would decide the case on its own merits. The case is withdrawn from the Court of learned Additional Sessions Judge, Gujrat and entrusted to the Court of learned Sessions Judge Gujrat for trial.
9. Before parting with this order, we would like to add that the copy of this order along with order of learned Additional Sessions Judge Gujrat whereby the pre-arrest bail was granted to the respondent would be sent to the Honourable Chief Justice of Lahore High Court, Lahore for his perusal. Copy of this order along with the reports of Medical Officer and Medical Board would be sent to the Secretary Health Punjab for perusal and suitable action under intimation to the Deputy Registrar (Judicial) of this Court.