Crl.
Misc. No, 2011 Muhammad Husnain/petitioner through the instant petition filed under Section 426, Cr.P.C. has sought for suspension of his sentence and admitting him to bail pending disposal of his main appeal.
2. Having been booked in case FIR No, 48, dated 01.03.2010, offence under Section 376, PPC, lodged at Police Station Aroti, Tehsil Kamalia, District Toba Tek Singh, the petitioner was tried by Mr. Ijaz Hussain Awan, learned Additional Sessions Judge, Kamalia. Learned trial Court seized with the matter in terms of judgment dated 04.05,2011 convicted the petitioner under Section 376, PPC, and sentenced to 25 years R.I. with fine of Rs,1,00,000/- and in case of non-payment thereof to further undergo S.I., for a term of six months. The petitioner was also extended the benefit of Section 382-B, Cr.P.C.
3. Learned counsel for the petitioner while opening his arguments submits that the prosecution badly failed to lead its case against the petitioner and the learned trial Court has passed conviction on the basis of surmises and conjectures. Learned counsel vehemently contends that the learned trial Court while delivering the judgment itself observed that statement of Mst. Tasleem Bibi (PW-7)/alleged abductee is not substantiated from the medical evidence as according to statement of Lady doctor Yasmeen Moazzam (PW-6) coupled with MLC Exh.PD. there was no fresh tear, and edges of the hymen were found healed. Although samples were sent for DNA Test, however, learned counsel vehemently urges no semen grouping was made as according to the opinion of the examiner, the material sent for the purpose was insufficient. Learned counsel further submits that the alleged eyewitnesses of the occurrence namely Khurshid Ahmed (PW-8) and Muhammad Arshad (PW-9) are closely related to the victim being real uncles, however, nevertheless they had seen the petitioner committing the offence with alleged victim yet they neither tried to rescue her nor catch hold the petitioner and the story of the prosecution on the face of it does not seem plausible. It is further argued that the petitioner, who is a student of 1st year, has been behind the bars since 05.03.2010, hence his sentence is liable to be suspended on the lapse of statutory period. In these circumstances learned counsel for the petitioner urges, case of the petitioner is fit for the relief prayed for.
4. Contrarily, learned Additional Prosecutor General assisted by learned counsel for the complainant vehemently opposes the contentions raised on behalf of the petitioner with the averments that there is direct allegation of zina against the petitioner and the prosecution case is supported by the statement of Mst. Tasleem Bibi, victim coupled with the positive reports of the chemical examiner and that of serologist. It is next argued that the learned trial Court while attending each and every aspect of the case rightly passed conviction against the petitioner and the sentence being long one, no case for suspension of the same is made out.
5. I have heard the arguments advanced by learned counsel for the petitioner, learned counsel for the complainant, as well as learned Additional Prosecutor General and gone through the record available on file.
6. In the instant case as per prosecution version the petitioner had committed the offence of zina with Mst. Tasleem Akhtar/alleged victim in the eye view of Khurshid Ahmed complainant (PW-8) and Muhammad Arshad (PW-9) and both these prosecution witnesses happen to be real uncles of the victim and there is nothing on the record whether they had attempted to rescue the victim or catch hold the petitioner especially when it is not the prosecution case that at that time the petitioner was carrying any fire-arm weapon with him. Moreover, learned trial Court while delivering judgment observed that: "Statement of Mst. Tasleem Bibi (PW-7)/alleged abductee is not substantiated from the medical evidence as according to statement of Lady Doctor Yasmin Moazzam (PW-6) coupled with MLC Exh. PD, there was no fresh tear and edges of the hymen were found healed."
Fact also remains that no semen grouping was ever made in order to substantiate the prosecution case as the samples sent for this purpose to the quarter concerned were found carrying insufficient material. Even otherwise the petitioner, who is a student of 1st year is behind the bars since 05.03.2010 as such statutory period has elapsed. In these circumstances when there is no possibility of early hearing of the main appeal coupled with the lapse of statutory period, this Court is persuaded to believe that there exist sufficient grounds to accept this petition. Consequently sentence of the petitioner is suspended and he is admitted to bail pending disposal of the main appeal subject to his furnishing bail bonds in the sum of Rs.1,00,000/- with one surety in the like amount to the satisfaction of the learned trial Court.