1. MUHAMMAD NOOR MESKANZAI, J.---By means of this order Criminal Bail Application No,236 of 2009 is sought to be disposed of.
2. Facts of the application are that on 28-9-2009 F.I.R. No,98 of 2009 was registered with Police Station Kuchlak by one Mst. Maria. It was alleged that on crucial day i,e, 28-9-2009 at 4-30 p.m. her neighbour Abdul Qadoos alias Pehlwan entered the house and forcibly took the complainant in the room and closed the room inside, then accused tried to commit Zina with complainant forcibly, on hue, cry and resistance of complainant she was subjected to beating with kicks and fists.
3. Meanwhile brother of complainant namely Rasheed and other inhabitants of Mohallah gathered after breaking the door, they entered the room and separated/saved complainant from the clutches of accused Abdul Qadoos so meanwhile Abdul Qadoos made his escape good. In consequence of this attack, complainant sustained internal injuries. The information of incident was conveyed to her husband and upon arriving of her husband report was lodged.
4. After lodging of F.I.R. accused/ applicant was arrested and investigation of the case was carried out, during the course of investigation police recorded the statements of Abdul Rasheed, Abdul Sattar, Abdul Majeed, Abdul Karim, Bakabul and constable Fazal-ur-Rehman. Challan of the case was submitted by the prosecution before the trial Court. Accused/applicant moved Bail Application No, 167 of 2009 which was rejected by the Additional Sessions Judge-VI, Quetta vide order dated 21-10-2009.
5. Mr. Sanaullah Ababki learned counsel for accused/applicant submitted that in fact a concocted story has been fabricated. The learned counsel urged that the sections mentioned in the F.I.R. are not at all attracted, particularly the ingredients of sections 376 and 354 are absolutely missing. It was further canvassed that there is not an iota of independent evidence available with the prosecution to substantiate the accusation. Learned counsel further submitted that in fact some loan was outstanding to husband of complainant and accused/applicant was called by her husband to collect the amount from him, he went there arid no payment was made but this false story was made out with mala fide intention in order to deprive applicant from his amount.
6. According to learned counsel for applicant the case of the prosecution against the applicant requires further probe and inquiry, therefore, accused/applicant is entitled for grant of bail. Learned counsel relied upon the judgment reported in 2009 PCr.LJ 153 Lahore.
7. Barrister Iftikhar Raza Khan Advocate appearing for complainant opposed the bail application with vehemence by submitting that accused has committed not only a non-bailable offence but an offence for Which punishment upto life imprisonment is provided. He further argued that accused attempted to commit Zina forcibly, upon refusal of complainant, she has been badly beaten. It was further submitted that there is big chunk of evidence available on the record justifying prosecution version. At the end he submitted that bail of accused/applicant was rightly rejected by Additional Sessions Judge-VI, Quetta and applicant is not entitled for concession of bail. On the other hand Mrs. Saima Jamal Advocate for State adopted the arguments forwarded by learned counsel for complainant and requested for rejection of application. Learned counsel for respondent relied upon following authorities:--
(i) 1996 PCr.LJ 620 (Federal Shariat Court)
(ii) 2004 PCr.LJ 1876 (Lahore)
8. I have heard learned counsel for the parties and gone through the available record. At the very out set it may be noted that Additional Sessions Judge-VI, Quetta dealt with the matter mechanically and has passed the order without consulting the record. Perusal of F.I.R. reveals that there is delay of three hours in lodging of F.I.R. and no plausible explanation has been offered by the prosecution regarding 3 hours delay, so in such circumstances deliberations and consultations cannot be ruled out. No doubt in F.I.R. there is clear allegation of an attempt to commit forcible Zina but yet complainant has not stated that her cloths were stripped, removed, torn so without going deep into the contents of F.I.R. apparently ingredients of sections 376 and 354, P.P.C. are missing. P.W.
9. Abdul Rasheed states that he broke the staple of door and entered the room, and saved/ separated complainant from clutches of accused, but all other P.Ws. i,e, Abdul Sattar, Abdul Majeed, Abdul Karim, Bakabul entering together with P.W. Abdul Rasheed do not state so.
10. Statements of other P.Ws. are to the effect that when they entered the room they found Mst. Maria and accused present in the house. None of the rest of P.W. stated that complainant was being beaten and P.W. Abdul Rasheed or other saved complainant from the clutches of accused. It also strange that four persons entered in the room they did not try to overpower the accused or did not beat him, even a single slap was not extended. So perhaps the prosecution seems to have concealed the real position and situation might be somewhat different from what has been stated.
11. So in these circumstances the statements of P.Ws. lack consistency, hence applicant has succeeded to make out a case for bail. As observed earlier that ingredients of main section i,e, 376 and 354, P.P.C. are apparently missing, therefore, on the analogy of principle of further inquiry applicant is entitled for bail. I am forfeited by the judgment reported in 2009 PCr.LJ .153 Lahore. As far as authorities referred by learned counsel for complainant are concerned, perusal whereof reflects that the facts of cases are entirely distinguishable. As far as first citation is concerned in that case clothes of wife of complainant were torn and she had become naked; whereas in this case no such allegation has been levelled neither by complainant herself nor by any P.Ws. As far as later authority is concerned in that case offence of Zinabil-Jabr was committed with an unmarried girl whereas in case in hand there is no such allegation, hence the cases so cited do not lend support to the, case of prosecution.
12. Perusal of order dated 2140-2009 passed by Additional Sessions Judge-VI, Quetta shows it can easily be gathered that the order so passed is not speaking one, and learned Judge did not take pain to go through the contents of F.I.R. According to F.I.R. complainant has gone to police station wherefrom she was given M.L.C. (although police is not supposed to give M.L.C.) to victim but Additional Sessions Judge-VI, Quetta has stated that after the occurrence police came to the place of occurrence where complainant was found got injured and was sent to Hospital for medical treatment.
13. In such view of the matter it can easily be concluded that Additional Sessions Judge has dealt with the matter mechanically. For the forgoing reasons, I am convinced that the case of prosecution against the accused/applicant is of further inquiry, hence I am inclined to admit the applicant on bail in the sum of Rs,200,000 (two lacs) with PR of like amount to the Satisfaction of Registrar/Additional Registrar of this court.
14. The observations made hereinabove are tentative in nature, which shall not influence merits of the case.