As per certificate, this is petitioner's first post-arrest bail application before this Court in this case
2. Through this petition, Shah Nawaz, the petitioner seeks post-arrest bail in case FIR No.47/2015, dated 09.5.2015, registered under Section 376 P.P.C. With Police Station Derawar, District Bahawalpur.
3. As per FIR lodged by Mst.Zarina complainant on 09.5.2015, the petitioner is saddled with liability of committing rape with Mst.Zarina Bibi complainant an unmarried girl aged about 17/18 years, in cattle shed adjacent to her house where she was available to answer the call of nature.Whereas,co-accused Abdul Majeed and Pervez remained on guard duty outside the cattle shed.
4. It is argued by learned counsel for the petitioner that he is innocent and has falsely been implicated in this case on the basis of previous animus; that there is undetermined delay of 12 days in lodging an FIR; that medical evidence does not aid the cause of prosecution version; that the petitioner is juvenile and no recovery has been effected from him during investigation, therefore, petitioner deserve concession of post-arrest bail.
5. On the other hand, learned DPG vehemently opposed this petition on the grounds that the petitioner is nominated in the FIR with a specific role of committing rape with the petitioner who is a virgin lady having age of 17/18 years; that delay in lodging FIR is well explained in its contents; that medical evidence fully corroborates the prosecution version; that the statements of the P.Ws.
Recorded by the police under Section 161 Cr.P.C. Fully support the prosecution story, therefore, this petition deserves dismissal on merits.
6. Arguments heard. Record perused.
7. The occurrence allegedly took place on 27.4.2015 at 11.00 P.M. Whereas the matter was reported to the police on 09.5.2015 at 10.30 A.M. With an unexplained delay of 12 days for which proper explanation has not been furnished by the complainant. It is also noticed that it was a night time occurrence but the complainant did not give any source of identification in the contents of FIR, therefore, chances of petitioner's false incriminating with due deliberation and consultation cannot be ruled out. Reliance be placed on Nadeem alias Nanha alias Billa Sher v. The State (2010 SCM R 949), Muhammad Rafique and others v. The State and others (2010 SCM R 385), Ali Gul v. The State (2003 SCM R 201) and Hadayatullah v. Abdul Hameed and another (1984 SCM R 119).
8. According to prosecution's case Mst.Zarina Bibi was virgin at the time of alleged occurrence but according to the report of lady doctor hymen of the victim was not intact and old healed. It has further been noticed that no opinion regarding the commission of rape with the victim was given by the lady doctor after her medical examination. It is also important to mention here that at the time of medical examination, the alleged victim has not mentioned the name of assailants rather he mentioned them as unknown while furnishing history to the lady doctor. The medical evidence about the commission of rape is inconsonance with the prosecution version at this stage, thus, created a fair account of doubt and inquisitiveness, the case against accused had necessitated further inquiry as contemplated under Section 497(2) Cr.P.C. Reliance be made upon Hazar Khan alias Hazaro v. The State (2003 P.Cr.L.J. 33 Karachi), Noor Samad v. The State and another (2001 MLD 730), Hazoor Bux v. The State (2006 P.Cr.L.J. 1039 Karachi) and Qari Nazeer and 2 others v. The State (2003 P.Cr.L.J. 884 Karachi). The DNA (De-Oxy Ribonucleic Acid) is mandatory in rape cases but in this case the report of DNA test is still awaited. Reliance be made upon Salman Akram Raja and another v. Government of Punjab through Chief Secretary, and other (2013 SCM R 203).
9. It is also noticed that the accused party has also lodged an FIR No.78/2015 against the complainant's father wherein it is unwrapped that on 27.4.2015 at about 5.00 PM a violence took place between the parties and Shah Nawaz petitioner sustained injuries and got medically examined in company of police officials, which also caused dent in the story of prosecution. The contents of FIR No.78/2015 reveal that there exists previous animosity between the parties.
Therefore, alleged guilt complicity of the petitioner in the crime is necessarily a matter of further inquiry. Reliance be made upon Munawar Khan v. The State (2015 YLR 1488 Peshawar) and Kamran v. Haji Muhammad Zahir Khan and another (2015 P.Cr.L.J. 402).
10. Learned counsel for the petitioner has placed on record copy of B-form of the petitioner's father, which reflects that the date of birth of petitioner was 02.3.1999 and he was in the age of 16 years at the time of commission of offence. The Investigating Officer has also declared the petitioner as juvenile. The complainant or the State did not place on record any material of such date of birth.
Reliance be made upon Muhammad Ahmad Javed v. The State and other (2014 P.Cr.L.J. 352). The petitioner has been kept behind the bars since 17.6.2015. During investigation, nothing has been recovered from the petitioner. Needful to mention here that one of the co-accused has been declared innocent by the police during investigation, which transpires that the story as contained in the FIR was not the whole truth which was to be thrashed at the trial cautiously and the case against the petitioner calls for further inquiry into his guilt covering under Section 497(2) Cr.P.C.
Reliance be made upon Zahid Abbas v. The State and another (2010 P.Cr.L.J. 447). In the present circumstances, the truthfulness and genuineness of prosecution story has come under clouds, become exotic and mounted on weak foundation. The investigation is completed and petitioner is no more required by the police for further investigation. Further incarceration of petitioner would not serve any purpose.
11. For the above reasons, this petition is accepted and petitioner is allowed post-arrest bail subject to his furnishing bail bonds in the sum of Rs.1,00,000/- (rupees one lac) with one surety in the like amount to the satisfaction of learned trial Court. However, it is clarified that the observations made hereinabove are tentative in nature and strictly confined to the disposal of this bail petition.