' SALMAN ANSARI, J.---This bail application has been moved on behalf of the applicants Arif Ali Ansari son of Anwar Ali Ansari and Raja Muhammad Arif son of Raja Afzal Khan who have been booked in F.I.R. No,50 of 2008 under section 365-B, P.P.C. Lodged at Police Station Brigade Karachi.
The charge was framed under sections 365-B/376 (2) P.P.C.
2. Brief facts according to the F .I.R. Are that on 16-3-2008 at about 1940 one Bashir Ahmed son of Khuda Bux registered above F.I.R. At Police Station Brigade Karachi complaining that they had come from Punjab to visit the Shrine of Qalandar Lal Shahbaz and thereafter on 15-3-2008 they had come to Karachi to the Mousoleum of Quaid-e-Azam, they parked their vehicles outside the Mousoleum, his son-in-law along with his daughter Mst. Razia Kubra and 12/13 women went to the Mausoleum, bought tickets while on instructions of husband of Razia Kubra she stayed at that place so that he could bring rest of the party to go inside the museum together. When he came after 15 minutes his son-in-law found Razia Kubra missing. He searched and doubted that his daughter had been kidnapped/abducted by the museum staff or other staff of the Mousoleum of Quaid-e-Azam with intention to commit Zina. On 17-3-2008 at about 3-30 a.m. The rangers on patrol found Mst. Razia Kubra standing outside the grill of the Mazar. On enquiry she disclosed her name Razia Kubra. Meanwhile at 4-30 a.m. A.S.-I. Asghar Chohan on duty at Brigade Police Station came at the spot and the girl was taken to the Police Station. In her 161, Cr.P.C. Statement girl narrated that she was standing alone, two persons approached her and forcibly took her down into room where three other boys came and they all after intoxicating her committed zina with her, when she came to her senses she found herself at Police Station. A case under section 365-B of the Women (Criminal Law Amendment) Act, 2006 lodged at Police Station- Brigade Karachi against accused persons and subsequently both applicants/ accused were arrested. The girl was medically examined on 17-3-2008 and Challan was submitted under section 365-B/376/34, P.P.C.
Against accused persons. Learned 5th Additional Sessions Judge Karachi East rejected the bail application of both the applicants/accused vide order dated 30-9-2008, hence this bail application.
3. It is argued by the learned counsel for applicants/accused that applicant No,1 is employee as Stenographer BPS-12 in the office of Resident Engineer, Quaid-e-Azam Management Board behind Mausoleum and the applicant No,2 is an Accountant in BPS-16 QMMB office at the same place, both are respected employees and have been falsely implicated in this case. They have not been identified in the identification parade and it was only on the basis of DNA Test conducted that they have been implicated in this case which test has not been properly conducted as applicant No,1 is shown son of Sarwar in the report while his father's name is Anwar Ali Ansari. There is no other evidence against both the applicant. Learned counsel has meanwhile given long narration in the bail application about history and methods of conducting DNA Test but he has not explained the same in so many words to assist the Court for considering and to appreciate his point of view that DNA Test was not properly conducted. Learned counsel for applicant has argued that in view of insufficient evidence the case of applicants requires further inquiry as made out. In support of his contention learned counsel for applicant has relied on Azhar Amin @ Naji @ Mota v. The State 2008 PCr.LJ 824; Syed Khalid Mahmood v. The State 1994 PCr.LJ 757; Jamil Ma'sih v. The State 1994 PCr.LJ.
765; Lejzor Teper v. The Queen PLD 1952 Privy Council 119; Peradeniya Service Bus Company Limited v. Sri Lanka Omnibus Company Limited; PLD 1952 Privy Council 128; Talib Hussain v. The State 1995 SCM R 1538 and Muhammad Ejaz v. The State 2008 YLR 690.
4. Learned Additional Prosecutor-General appearing for the State has vehemently opposed the bail application. She has contended that result of DNA test was received positive of both the applicants/accused then they were arrested and implicated, in the present case the punishment is provided as death or imprisonment for life. The innocent girl Mst. Razia Kubra had came to visit the Mausoleum but she had been subjected to such a brutal act, at this stage both the applicants are not entitled to any concession whatsoever, hence the bail application of applicants/accused may be rejected.
5. Having heard learned counsel for application, learned Additional Prosecutor General appearing for State and perusal the case-law cited, in this matter the bNA test report dated 24-4-2008 of IBGE, Islamabad issued by the Incharge DNA Forensic Services IBGE Islamabad, the operative part of the report is as under:-- "DNA profiles of suspect, Mr.As' Ansari son of Sarwar and Mr. Raj Muhammad Arif son of Mr. Raj Muhammad Afzal, 100% matche with the DNA profile obtaine from the DNA isolated from th stained cloths of victim Ms. Razi Kubra. It confirms the involvemez of both the suspects in the crim and also gang rape of Ms. Razi Kubra."
6. This report was sent by the Institute of Biomedical and Genetic Engineering, Government of Pakistan Islamabad in F.I.R. No,50 of 2008 which is the present case, hence any inadvertent mistake in the name would not make the report in my opinion doubtful when the correct crime number and any other details of the case are given in the report. However, nature of crime with respect to identification parade would be looked into during the trial as other corroborative evidence and the evidence of witnesses who had found the applicants/accused to be present prior to the incident near place of incident. Regarding case 2008 SD 400 Azhar Amin @ Naji @ Mota v. The State where two DNA reports which were inconsistent and contradictory to each other, such case is not in the present matter. Syed Khalid Mahmood v. The State 1994 PCr.LJ 757 wherein it has been held that circumstantial. Evidence is evidence of facts from which the facts in issue may be inferred as a natural or probable conclusion. In Lejzor Teper v. The Queen PLD 1952 Privy Council 119 is on its response of hearsay evidence. In my opinion at this stage deeper appreciation of B evidence is not required so as to prejudice the trial of the case. On the same lines with due deference to the case cited being Muhammad Ejaz v. The State 2008 YLR 690 where the medical report did not support the allegation of commission_ of forcible Zina, these findings would not be applicable to the present case where the statement of the victim that she was intoxicated and put under fear on show of arms and raped. Therefore, in view of the above discussion and with due respects to the case cited which in my opinion would not be applicable under the circumstances C to the facts of the case as discussed above, hence finding no merits the present bail application is dismissed accordingly.