' KHURSHID ANWAR BHINDER, J.--- The petitioner seeks post-arrest bail in case F.I.R. No, 600/2008 dated 6-12-2008 registered under sections 342, 376, 511, 109, 420, 468, 471 P.P.C. Read with Article 155
(c) of Police Order, 2002 at Police Station City Mianwali.
2. Precise allegations against the petitioner as per narration of F.I.R. Are that the petitioner while being posted as D.S.P. Musa Khel had tried to commit Zina-bilJabr with the complainant, who was deputed at 'police lines Mianwali as lady constable.
3. Learned counsel for the petitioner submits that the alleged occurrence is absolutely false and the instant case stood registered against the petitioner due to mala fide of D.P.O. With whom the petitioner had exchanged hot words prior to this occurrence. He further submits that the story narrated by the complainant in the F.I.R. Does not appeal to one's mind, as the alleged occurrence had taken place at the residence of the petitioner where nobody was present and the petitioner could have very easily committed Zina-bil-Jabr with the complainant, whereas he has not done so.
He ..Further submits that narration of F.I.R. Is falsified by the fact that the complainant had not got herself medically examined after the occurrence. According to the learned counsel, the complainant is a woman of easy virtue who got the instant case registered against the petitioner on the instigation, of D.P.O. He further argues that in the instant case section 376, P.P.C. Is not attracted, as no penetration was done and in order to constitute an offence under section 376, P. P.
C . Penetration is necessary. As regards section 354 P.P.C. It is a bailable offence. He lastly argues that rest of the provisions of law under which the present petitioner is liable to be tried are not made out against him as per facts and circumstances of the case, therefore, case of the petitioner is that of further inquiry into his guilt and he is entitled to be released on bail. In support of his arguments he has relied upon Abdul Majid v. The State (1973 SCM R 108) and (2007 M LD 1313).
4. Learned D.P.G. Opposes bail application of the petitioner and submits that the petitioner has committed heinous offence under section 376, P.P.C. Of making an attempt of Zina-bil-Jabr with the victim. He further submits that there is ample evidence on record which could connect the petitioner with the commission of the offence, he has relied upon the evidence of Sana Ullah, Naib Moharar who had endorsed the version of Aman Ullah, driver who was sent by the petitioner to fetch the complainant from her hostel and to bring her to his house. Shahid Hayat, Gunman of the petitioner had also endorsed the statement of above said witnesses. He further argues that it is an offence against the society and such a respectable officer like D.S.P, who happens to be the custodian of the lives of the people had committed an offence against the society, therefore, is not liable to be released on bail.
'I have heard the learned counsel for the petitioner as well as learned D.P.G. And have also perused the record. The petitioner is no doubt nominated in the F.I.R. With specific role but at the same time this Court has to see that the offences under which the present petitioner is liable to be tried are made out against him or not.
6. As far as section 376, P.P.C. Is concerned, I am afraid none of the essential ingredients to constitute an offence under section 376, P.P.C. Is made out against the petitioner in the instant case as per facts and circumstances of the case, as no sexual intercourse had been performed. As regards section 354, P.P.C, there is ample evidence on record, according to which it is established that the petitioner had outraged the modesty of the complainant, therefore, section 354 P.P.C. Is made out against him but at the same time it may be mentioned here that section 354 P.P.C. Is a bailable offence. Rest of the offences under which the present petitioner. Is liable to be tried as per F.I.R. Are not attracted in the instant case.
7. Story narrated in the F.I.R. Facie appears to be implausible, ill and unbelievable for the reason that the petitioner goes to the extent of calling the complainant who happens to be his subordinate from her hostel to his house for the purpose of committing Zina-bil-Jabr then obviously there was no impediment in his way not to perform Zina-bil-Jabr with her, as there was nobody in the house and there was nobody to come to the rescue of the complainant but even then the petitioner had not committed rape with her. Moreover, had Zina-bil-Jabr been committed with the complainant then there would have certainly incriminating material available which could have been produced by the victim to further strengthen her case but she had not done so. She had also not got herself medically examined in order to show the marks of violence on the private part of her body to establish the fact that attempt of Zina-bil-Jabr was made on her, therefore, ingredients of section 376 P.P.C, are not fulfilled in the present case.
8. As far as evidence of Sanaullah, Naib Moharar, Amanullah, Driver and Shahid Hayat, Gunman is concerned regarding involvement of the petitioner in the commission of offence is concerned, I am afraid there can be a possibility of false implication of the petitioner by the above said witnesses at the instance of D.P.O, concerned, with whom the petitioner had exchanged hot words few days prior to the occurrence, therefore, possibility of false implication of the petitioner in this case cannot be ruled out.
9. Section 375 P.P.C, fully explained the essential ingredients to constitute rape of which punishment is explained in section 376 P.P.C. Section 375 P.P.C, is reproduced hereunder:-- , "Rape. A man is said to commit "rape" who except in the cases hereinafter excepted, has sexual intercourse with a woman under circumstances falling under any of the following descriptions.
' First. Against her will.
' Secondly. Without her consent.
' Thirdly. With her consent, when her consent has been obtained by putting her in fear or death or of hurt.
' Fourthly. With her consent when the man knows that he is not her husband, and that her consent is given because she believes that he is another man to whom she is or believes herself to be lawfully married.
' Fifthly. With or without her consent when she is under fourteen years of age."
'Since none of the above mentioned ingredients of section 375, P.P.C, are fulfilled to constitute offence of rape in the instant'case by the petitioner, therefore, the said provision of law under which the present petitioner is liable to be tried is prima facie not made out against him and if it is so then case of petitioner clearly falls within the ambit of further inquiry into his guilt.- While making tentative assessm ent of the role of the petitioner, I am of the considered view that occurrence in the above said case casts serious doubts in one's mind regarding its happening. 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.