1. ' MUHAMMAD TASNIM, J.---Granted subject to all just exceptions.
2. Applicant is booked in Crime No, 165 of 2011, under section 376-A, Women Protection Act, Police Station Saeedabad, Karachi. In the first place applicant applied for bail before the learned III- Additional Sessions Judge, Karachi-West, who dismissed the bail application vide her order dated 26-8-2011 for the reasons mentioned therein. Against the aforesaid order present bail application has been filed.
2. ' The facts, as setout in the F.I.R., are that complainant is resident of House No,502, Sector 17-A, near Jamia Masjid Karimi, Saeedabad, Karachi and was living in such house along with her family members. It is alleged in the F.I.R that about a year back complainant's wife and children went to his native place. It is further alleged that about a month back they came to Karachi as complainant's daughter Khalida aged about 15/16 years was not feeling well. She was taken to Doctor, who informed the complainant's wife that said lady is carrying seven months pregnancy. It is further stated in the F.I.R that on enquiry from the victim she disclosed that when she went to the village where applicant used to visit house of the complainant in the village. It is alleged that applicant aimed at the victim and committed zina-bil-Jabr, thereafter she returned to Karachi. It is further alleged that at Karachi off and on applicant committed zina-bil-Jabr with the daughter of the complainant and threatened her not to disclose any person otherwise she will be killed by him.
3. For this reason victim did not disclose to any one. It is further mentioned in the F.I.R that brother of the complainant Aijaz was engaged with the elder sister of the victim. Accordingly, F.I.R was lodged.
4. ' Learned counsel for the applicant has submitted that version in the F.I.R is not supported by the victim in her statement under section 164, Cr.P.C. He further submitted that in the F.I.R it is mentioned that about a year back family of the complainant went to native place, but neither the name of native place is mentioned nor the date or month of their departure is mentioned. He further submitted that even the date and month of their return to Karachi is not mentioned in the F.I.R. He further submitted that it is not mentioned in the F.I.R that as to whether present applicant allegedly committed offence with the victim at the native place at his residence or at the house of the complainant. Learned counsel further submitted that it is alleged in the F.I.R that about a month ago from the date of lodging of F.I.R. The victim and her mother came to Karachi and applicant used to visit their house and used to commit zina-bil-Jabr, but neither any date has been mentioned nor the place of such crime has been mentioned. He further submitted that when victim was examined under section 164, Cr.P.C. She stated that about 8/9 months earlier to the recording of statement she was kidnapped by the applicant in Karachi and he had taken her to his house where Zina was committed with her on showing pistol to her. He further submitted that statement made by the victim under section 164, Cr.P.C. Completely belies the story of the prosecution and makes the case of the prosecution doubtful entitling the applicant for concession of bail. Learned counsel further submitted that D.N.A. Test was conducted after taking samples from the applicant, victim and newly born baby but such samples were collected by the police on 9-4-2011 and were sent for laboratory test at Islamabad on 18-4-2011. He further submitted that delay of nine days in sending the samples creates doubt and makes the case of prosecution doubtful. Learned counsel further submitted that D.N.A. Report was submitted on 20-4-2011, which was in positive. He further submitted that applicant challenged the above D.N.A. Report by means of Revision Application No, 13 of 2011 before the learned IV-Additional Sessions Judge, Karachi-West, who disposed of the aforesaid revision per order dated 27-5-2011 and ordered for fresh D.N.A. Test. Learned counsel further submitted that applicant was taken from the Central Prison, Karachi to Jinnah Postgraduate Medical Centre, Karachi for D.N.A. Test but neither victim appeared nor the baby was produced for the D.N.A. Test though three chances have been given to her. He further submitted that from the conduct of the victim it appears that she is avoiding fresh. D.N.A. Test, which also makes the case of prosecution doubtful. Learned counsel further submitted that even if statement of the complainant in the F.I.R and the statement of victim under section 164, Cr.P.C. Is taken as true, still no conviction can be based on such material. In the end learned counsel for the applicant submitted that there is an inordinate delay in lodging of F.I.R., which has not been explained by the prosecution and on this ground alone applicant is entitled to bail. In support of his contentions, learned counsel for the applicant relied upon the following case-law:--
(1) ATTA MUHAMMAD V. THE STATE (2008 M LD 35),
(2) MUHAMMAD ARIF V. THE STATE (2009 M LD 19), AND
(3) MUHAMMAD YAQOOB V. THE STATE (2008 YLR 2357).
5. ' Conversely, learned A.P.-G. Has vehemently opposed the grant of bail and submitted that there is ample material available with the prosecution, which connects the present applicant with the commission of offence. He further submitted that D.N.A. Report is in positive and based on such report learned trial Court has rightly rejected the bail application filed by the applicant. Learned A.P.-G. Further submitted that even otherwise variation in the statement of the victini under section 164 Cr.P.C. Is not material and does not affect the case of the prosecution. Learned A.P.-G. Further submitted that judgments cited by the learned counsel for the applicant are distinguishable on facts and do not help the applicant. Learned A.P.-G. Relied upon the case of MUHAMMAD SHARIF AND OTHERS V. THE STATE (2011 M LD 389).
6. ' I have heard the learned counsel for the parties and have perused the record so also the case- law cited at the bar.
7. ' I am mindful of the facts that at the bail stage deeper appreciation of the record cannot be gone into, but only a tentative assessm ent is to be made just to find out as to whether the applicant/ accused is connected with the commission of offence or not. Applying the above settled legal position to the case in hand, it will be seen that version in the F.I.R. Is not in line with the statement of victim under section 164, Cr.P.C. Recorded on 11-4-2011. It has been stated in the F.I.R that complainant's family went to native place about a year ago and had come to Karachi only one month prior to lodging of F.I.R. When it came to their knowledge that daughter of the complainant is not keeping well arid she was taken to Doctor, who informed the wife of the complainant that victim is carrying seven months pregnancy. Admittedly the pregnancy came to the knowledge of complainant about one month prior to lodging of F.I.R., but F.I.R was lodged after delay of about one month. In the F.I.R. Date of occurrence is shown as not known. Even otherwise the victim in her statement under section 164, Cr.P.C. Had stated that about 8/9 months prior to the recording of statement she was abducted by the applicant in Karachi. This statement is completely in contrast to the version of the complainant in the F.I.R., which makes the case of the prosecution doubtful.
8. ' With regard to the D.N.A. Report, it is yet to be decided after taking samples from the applicant, victim and the baby as to whether the report is in positive or in negative. As stated by the learned counsel for the applicant, applicant has been produced in hospital thrice, but on all the occasions victim did not appear along with baby for samples in spite of service of notice upon her. The earlier D.N.A. Report dated 20-4-2011 was questioned through a Revision Application No,13 of 2011 before learned IV-Additional Sessions Judge, Karachi West, who disposed of the same per order dated 27- 5-2011 ordering for re-examination. The revisional Court disposed of the revision application in the following words:-- "(6) The learned Advocate for applicant has submitted that 1.0. Has taken sample for DNA test of the accused and minor baby born after the alleged incident of and kept for upto none days with him for which police file indicates that the MLO has taken samples for DNA on 9-4-2011, and the same has been sent and received at Islamabad Institute of Bio-Medical and Genetic engineering on 18th April, 2011, therefore, the prayer of applicant having force for fresh DNA test of accused and minor baby. However the last submitted report also be considered by the Trial Court. In the light of above the I.O. Is directed to take sample of accused and minor baby (daughter of Khalida) in presence of MLO of Jinnah Hospital Karachi and immediately sent to the concerned department at Islamabad for fresh DNA report on the cost of both accused and complainant. Consequently Criminal Revision in hand is hereby disposed off as discussed above."
9. ' In the circumstances, from the material collected by the police, it prima facie appears that there is an inordinate delay in lodging of F.I.R on the part of the complainant. It is also an admitted position that version in the F.I.R. Is not corroborated by the victim in her statement under section 164, Cr.P.C.
10. The D.N.A. Report was challenged before the learned revisional Court, who ordered for fresh D.N.A.
11. Test, which makes the case of prosecution doubtful and in my view the applicant has made out the case of further enquiry in terms of subsection (2) of section 497, Cr.P.C. Accordingly, applicant is admitted to bail on his furnishing solvent surety in the sum of Rs,8,00,000 (Rupees Eight Lacs) and P.R bond in the like amount to the satisfaction of learned trial Court.
12. ' Any observation made in the above order is of tentative nature and shall not effect the case of the prosecution at the trial. Learned trial Court shall dispose of the case strictly in accordance with law and the material brought before it.
13. ' It has been brought to the notice of the Court that there are only few prosecution witnesses, in the circumstances,- learned trial Court is directed to conclude the trial within a period of three months and pass judgment under intimation to this Court. Learned trial Court is also directed to submit monthly progress report of the case to this Court through M.I.T-II of this Court.