Brief facts of the case are that the petitioner submitted an application to S.H.O. Police Station Shera Kot, Lahore stating therein that on 27.1.2009 at about 7:00 p.m., the petitioner was present in her house and one Mian Ijaz Ahmed s/o Ch. Muhammad Tufail was also present in her home as guest.
The daughter of the petitioner namely Mst. Aisha Mushtaq aged 11 years was not seen to be present, that is why the petitioner searched her and she went upstairs on roof of her house. Then she heard hue and cry of her daughter, which was coming from the roof of a house of her neighbour. The petitioner in a crying and weeping position ran downstairs and when Mian Ijaz Ahmed and she went upstairs to the roof of her neighbour from where voice of hue and cry of the daughter of the petitioner was coming and there was a room on roof of the house of her neighbour which was bolted from inside and from that room the voice of hue and cry of her daughter was coming. The petitioner peeped into the room and saw that Intizar Ali respondent was committing Zina with her daughter. The petitioner and Mian Ijaz Ahmed knocked at the door forcibly and suddenly the door was opened and Intizar Ali accused succeeded to flee away.
2. After registration of case, Mst. Aisha Mushtaq, the alleged victim, moved an application before the learned Raga Magistrate stating therein that she is 11 years of age and student of 5th class.
Intizar Ali respondent took her in a room on the roof of his house and he started indecent acts with her and on her hue and cry, he put hand on her mouth and removed her Shalwar and tried to commit Zina with her but could not succeed. She further stated in the application that no penetration took place but due to the act of respondent, her Shalwar and clothes- became wet.
The learned Judicial Magistrate, Lahore on 23.2.2009, recorded her statement in which she reiterated whatever she had stated in her application.
3. During investigation, the police found Intizar Ali accused innocent and submitted report before the learned Ilaqa Magistrate stating therein that according to the report of the Chemical Examiner, no Zina was committed with Mst. Aisha Mushtaq and acting upon the report of Muhammad Maqsood ASI/Investigating Officer of Police Station Shera Kot, Lahore, which was forwarded by the Incharge Investigation as well as B.S.P. Nawankot Circle, Lahore, the learned Ilaga Magistrate vide orders dated 2.3.2009 discharged the accused and directed to release him. Before passing of the said order on the same day in the presence of Muhammad Maqsood ASI, the learned Additional Sessions Judge Lahore dismissed the bail application of Intizar Ali respondent with certain observations holding that the investigation of the police is mala fide and partial and did not believe the findings of the police in the presence of the statement of victim and other PWs.
4. Learned counsel for the petitioner submits that there was no allegation of committing Zina and thus the report of Chemical Examiner being in negative was of no help to the accused as according to the statement of Aisha Mushtaq, it was only a case of an attempt to commit Zina. He further submits that whatever respondent did with Aisha Mushtaq, she narrated the same in her application as well as in her statement recorded by the learned Magistrate under Section 164 Cr.P.C.
5. On the other hand, learned counsel appearing on behalf of Respondent No, 7 submits that the order passed by the learned Magistrate is perfectly in accordance with law and according to the investigation conducted by the police. He submits that as in the FIR in clear terms, it was stated that the respondent was seen committing Zina with Aisha Mushtaq and in view of the report of Chemical Examiner in negative, the prosecution moulded their case by stating that only an attempt to commit Zina was made by the respondent.
6. After hearing learned counsel for the parties and perusing the record, I have noticed that the impugned order appears to have been passed merely on the basis of the investigation reports of police officer. The learned Magistrate does not appear to have independently considered the material on record. He passed the impugned order on the presumption that the commission of Zina has been negated by the report of the Chemical Examiner, though no such allegation was leveled by the victim. He has not given any importance to the statement of the victim recorded under Section 164 Cr.P.C. and similarly upon the report of the investigating officer, passed the impugned order. The police officer did not bring into the notice of learned Magistrate at the time of passing of order that early in the morning, certain observations have been made by the learned Additional Sessions Judge while dismissing the bail of Intizar Ali respondent.
7. Resultantly, the impugned order dated 2.3.2009 passed by the learned Judicial Magistrate, Lahore releasing the Respondent No, 7 after being discharged from the case, is set aside and the Respondent No, 7 be put to the position prior to 2.3.2009.