' SHEZADA MAZHAR, J.---By means of instant petition, Parvaiz and Muhammad Sharif/petitioners have sought for their post-arrest bail in case F.I.R. No, 63, dated 8-2-2012, offence under sections 365-B, 376(2), P.P.C. Registered at Police Station, Mochiwala District Jhang.
2. Briefly the prosecution case, as per contents of the F.I.R., is that one and half months prior to the registration of F.I.R. At 10-00 a.m. Petitioners along with others while armed with lethal weapons forcibly abducted Mst. Sarwar Bibi, wife of the complainant in presence of the witnesses in order to commit sexual intercourse with her and while brandishing the firearms raised lalkara that if anyone come near he would be done to death. The complainant also paid Rs,50,000 to Muhammad Sharif, accused for the return of his wife but even then she has not been returned. Hence, this case.
3. Learned counsel for the petitioners while opening his arguments submits that the petitioners are innocent and have falsely been involved in this case by the complainant against the actual facts and circumstances. Learned counsel for the petitioners further contends that there is delay of one and half months in lodging the F.I.R., which goes unexplained on the part of the prosecution.
Learned counsel for the petitioners further submits that during the course of investigation the petitioners and other co-accused were declared to be innocent and discharge report was also prepared and it was found that such type of occurrence had never taken place. Learned counsel next urges that complainant has thrown a wider net by entangling the petitioner and other male member of petitioners' family in this bogus case due to previous enmity between the parties. It is argued on behalf of the petitioners that the alleged victim of the instant case is a married woman, 50 years of age, having grown-up children. Learned counsel further argues that while medically examining the victim, the doctor has not observed any mark of violence or any sign of resistance. It is next contended on behalf of the petitioners that neither there is any report of Chemical Examiner nor DNA test was conducted and semen grouping has also not been done in the instant case and in the absence of such reports, case against the petitioners squarely becomes one of further inquiry into their guilt falling within the ambit of section 497(2), Cr.P.C. And they are entitled to the concession of bail.
4. As against above, learned Deputy District Public Prosecutor opposes this petition with vehemence mainly on the ground that the petitioners are nominated in the F.I.R. And there is specific allegation of zina against them. Learned DDPP submits that the petitioners remained fugitive from law for a considerable period. It is finally submitted that challan in the case has already been submitted before the learned trial Court as case against the petitioners is of heinous nature, which is also covered within prohibition contained in subsection (1) of section 497, Cr.P.C. As such they are not entitled to the concession of bail.
5. No one has entered appearance on behalf of the complainant in spite of the fact that he was duly informed about the fixation of instant petition.
6. Arguments advanced pro and contra have been heard. I have also gone through the record available on file.
7. Nevertheless the petitioners are named in the F.I.R., however, I am afraid, this Court has to see from the facts and circumstances whether case against the petitioners to the extent of grant of bail is made out or not. Admittedly the matter was reported to the police with the delay of one and half months, which goes unexplained on the part of the complainant/prosecution. Moreover, it is also an undisputed fact that the victim of the instant case is a married woman of 50 years old having grown-up children. In this occurrence, father and son, the petitioners are alleged to have committed zina with the victim but it does not appeal to a prudent mind that father and son, the present petitioners will commit zina-bil-jabr together with the victim. There is neither any report of Chemical Examiner qua vaginal swa bs nor DNA test was conducted and even semen grouping has not been done in the instant case to ascertain involvement of the petitioners and in such circumstances semen found on the vaginal swabs of the victim loses its evidentiary value.
Respectful reliance in this regard is placed on the dictum of law laid down in the case of Mst. Ehsan Begum v. The State (PLD 1983 FSC 204), wherein it has been held as under:- "----S. 10---Accused (man and woman) allegedly staying in hotel---Name of man written in hotel register, but nothing in evidence of witnesses showing that woman was with him or stayed in hotel- --Evidence of witnesses in absence of such identification, of no consequence---Accused stated to have again stayed in another Hotel but not proved--:Commission of offence of Zina not proved by evidence of eye-witnesses or circumstantial evidence---Report of Chemical Analyser and semen stained Shalwar not relevant as woman being married and had been with her husband till 3 days before her arrest-- I Grouping of accused's semen not done for matching--- Conviction under S.10 set aside in circumstances of case".
' Moreover, in the case of Abid Javed alias Mithu v. The State (1996 PCr.LJ 1161), it was further held that:- "----S. 10---Appreciation of evidence---Where semen of accused not sent to Serologist for semen grouping, semen found on vaginal swabs was of no evidentiary value---Semen found on the vaginal swa bs of the victim loses its evidentiary value if the semen of the accused is not obtained and got examined and matched with semen found on vaginal swabs by the Serologist".
' Similar view was also affirmed in the cases of Waqar-ul-Islam and another v. The State (1997 PCr.LJ 1107) and Muhammad Aslam v. Shakeel Liaqat and others (2006 SCM R 348).
' Moreover, bail could be granted if the accused has good case for c grant of bail on merits and his absconcion would not come in the way while granting him bail. Reliance is placed upon Mitho Pitafi v, The State (2009 SMCR 299). The petitioners were found innocent by the local police as well as DSP and their names were placed in column No,2 of the report under section 173, Cr.P.C. Keeping in view the dictum of law laid down by the august Supreme Court of Pakistan in the case of Brig.
(Retd.) F.B. All and another v. The State (PLD 1975 Supreme Court 506), wherein it has been held that a person whose name is placed in Column No,2 of the report under section 173, Cr.P.C. And not recommended to be tried by the court cannot be dubbed as an accused and as such the petitioners have made out a good case for grant of relief prayed for. On medical examination of the victim of the instant case, the doctor has observed no mark of violence or any sign of resistance at the part of the victim of the case, who even otherwise is a matured lady, mother of three children. In this backdrop culpability of the petitioners would be determined during the course of trial after recording the prosecution evidence. All the above facts and circumstances when put side by side make the prosecution case against the petitioners one of further inquiry falling within the purview of section 497(2), Cr.P.C. The petitioners are behind the bars since the date of their arrest and investigation being complete their corpus is no more required by the police for further investigation. Further detention of the petitioners behind the bars would not serve any useful purpose.
8. For the foregoing reasons this Court is persuaded to believe that the petitioners have made out a case for their enlargement on post-arrest bail. Consequently, the instant petition is allowed and the petitioners are admitted to bail after arrest subject to their furnishing bail bonds in the sum of Rs,1,00,000 each with one surety each in the like amount to the satisfaction of the learned trial Court.