The petitioner seeks post arrest bail in case FIR No, 942/07 dated 1.11.2007, registered under Section 365-B PPC at Police Station Saddar Jhang District Jhang.
2. Precise allegation against the petitioner is that he had abducted daughter of the complainant, removed her to some unknown place and had committed Zina-bil-Jabr with her.
3. Learned counsel for the petitioner submits that the petitioner has been found innocent in first investigation conducted by the I.O. He has particularly referred to the MLR and the report of chemical examiner, which negates the commission of said offence. According to MLR, Dr. had opined that hymen of the victim remained intact. A false and fabricated case is registered against the petitioner. There is an unexplained delay of 16 days in lodging of the FIR. The petitioner is involved in this case due to previous enmity. He further submits that the petitioner is behind the bars for the last six months. Medical examination of the victim was conducted after ten days of the occurrence, therefore, case of the petitioner is that of further inquiry into his guilt.
4. Learned counsel for the complainant opposes bail application of the petitioner and submits that the petitioner is nominated accused person in the FIR and active role of commission of Zina-bil- Jabr is attributed to him, which is a heinous offence and does not entitle him to be released on bail.
While controverting the argument advanced by the learned counsel for the petitioner, learned counsel for the complainant submits that delay in lodging of the FIR is very well explained. He has also referred to the eye-witness account which corroborates the version of FIR. The petitioner remained PO in this case for about one month. The petitioner is a history sheeter and in second investigation he has been held guilty.
5. Learned DPG has also opposed the bail application of the petitioner and has adopted the same arguments advanced by the learned counsel for the complainant.
6. I have heard the learned counsel for the petitioner, learned counsel for the complainant as well as learned DPG and have also perused the record. The petitioner is nominated in the FIR but I am afraid, the allegations levelled against him are not substantiated by the medical evidence. As per MLR Doctor had opined that hymen of the victim was intact and the report of the chemical examiner is also in negative. As per medical jurisprudence, hymen cannot remain intact if he sexual intercourse is genuinely committed and of course there are certain ailments or the different mental state when despite sexual intercourse hymen remains intact. At times sexual intercourse is not performed properly due to fear, tension or excitement, but it all depends on situation to situation. In the instant case, the petitioner had suspicion of his wife having illicit relation with complainant's son Arshad, As per facts and circumstances, had the petitioner committed Zina-bil- Jabr with the victim, then it is for sure that due to grouse of his wife's illicit relation with Arshad, he could have performed sexual intercourse with the daughter of the complainant with full force and in that eventualities hymen could not have remained intact, especially when the victim stayed with the petitioner for three days and sexual intercourse was repeated with her. This very fact establishes that no sexual intercourse was committed with the victim. Moreover, medical examination of the victim was insignificant, especially when it was conducted 10 days after the occurrence, because semen cannot be detected after the lapse of 10 days. If the story of abduction and Zina-bil-Jabr was found to be correct, then there was no reason on the part of the complainant to get his daughter medically examined ten days after her arrival at her place of residence, therefore, possibility of deliberations cannot be ruled out. There is no direct evidence against the petitioner which could connect him with the commission of said offence other than the statement of victim which I am afraid is not confidence inspiring.
7. Under the facts and circumstances, the case of the petitioner is that of further inquiry into his guilt. I, therefore, admit the petitioner to post arrest bail subject to his furnishing bail bonds in the sum of Rs, 50,000/- with two sureties in the like amount each to the satisfaction of the learned trial Court/Illaqa Magistrate.
Petition stands disposed of.