By means of instant petition under Section 426, Cr.P.C. Syed Musa Raza, petitioner has sought for suspension of his sentence and admitting him to bail pending disposal of his main appeal.
2. Being involved in case FIR No, 232/2011, dated 24.10.2011, offence under Sections 365-B, 376(1), 379, 411, PPC, registered with Police Station, Satellite Town, Jhang, the petitioner was tried by learned Additional Sessions Judge, Jhang, who vide judgment dated 13.09.2012, convicted the petitioner under Section 376(1), PPC and sentenced him to undergo ten years R.I. with fine of Rs, 10,000/- and in case of default in payment of the same, to Section 382-B, Cr.P.C. was also extended in favour of the petitioner.
3. Learned counsel for the petitioner submits that the petitioner has falsely been implicated in the instant case by the complainant against the actual facts and circumstances, with ulterior motives.
It is argued that the occurrence in the instant case took place on 08.09.2011 but the matter was reported to the police on 24.10.2011 i,e, with, the delay of one month and sixteen days, as Mst.
Shamim Akhtar the alleged abductee herself made an application on 09.09.2011 before the learned Illaqa Magistrate that she should be lodged in Dar-ul-Aman as she was having apprehension of murder at the hands of her husband. It is contended that initially the crime report was lodged for offence under Section 365-B, PPC, but subsequently offences under Sections 379, 411, 376 (1), PPC, were added. Learned counsel contends that the petitioner was only convicted for offence under Section 376(1), PPC, however, he was acquitted of the charge for offences, under Sections 379, 411, 365-B, PPC. It is argued months and eight days of the alleged occurrence, whereas she was medically examined with the further delay of six days i,e, on 22.11.2011. Learned counsel for the petitioner argued that as the alleged abductee was a married woman, therefore, the question of positive report does not advance the prosecution case. It is argued that in such circumstances the petitioner has made out a good case for the grant of relief prayed for by means of instant petition.
4. Contrarily, learned Deputy Prosecutor General assisted by learned counsel for the complainant has opposed this petition with vehemence. It is argued that the petitioner is named in the crime report. There is allegation of commission of zina against the petitioner, which the prosecution successfully proved during trial. It is next argued that the statement of the Medical Officer in this case was not cross-examined by the defence side. Learned counsel for the complainant submits that the learned trial Court has passed the impugned order while evaluating the material available on the record in its true perspective and as such the petitioner does not deserve any leniency.
5. Arguments heard, Record perused.
6. There is delay of-one month and sixteen days-in lodging the crime report at the part of the prosecution. Statement of Mst. Shamim Akhtar, victim of the instant case was recorded on 16.11.2011 i,e, after the delay of two months and eight days of the occurrence and subsequently she was medically examined on 22.11.2011. The victim of the instant case is admittedly a married woman and positive report of the Chemical Examiner in the instant case does not advance the prosecution case. Initially the crime report was lodged for offence under Section 365-B, PPC, but subsequently offence under Sections 379, 411, 376(1), PPC, were added. However, the petitioner was only convicted/sentenced for offence under Section 376(1) PPC as such the prosecution version was found false to the extent of offence under Sections 379, 411, 365-B, PPC. The culpability of the petitioner would be seen at the time of hearing of main appeal. In such circumstances coupled with the fact that the petitioner is behind the bars since the date of his arrest and there is no possibility of early fixation of the hearing of main appeal. Consequently sentence of the petitioner is suspended and the petitioner 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.