MALIK HAQ NAWAZ, J.---The petitioner was booked for the above offences Vide FIR No.3/16 under sections 376/457/202, P.P.C. registered at Women Police Station, Ghizer.
2. The brief facts of the case are that on 07-06-2016 at 12:00 hours a report was submitted by S.H.O.
Chatorkhand that on 04-06-2016 one Mst. Mehar Nigar was brought in Heath Center Chatorkhand and on medical examination by the Doctors, she was found pregnant. Since the lady was a widower, therefore Police Started proceedings under section 157, Cr.P.C. and the lady was produced before lady medical officer, who referred her to D.H.Q Hospital Gilgit. On further examination by Dr. Shahab-ud-Din Radiologist of D.H.Q Hospital Gilgit, it transpired that she was carrying pregnancy of over 07 months in her womb. During investigation, the lady disclosed that the present petitioner forcefully raped her in the house of her parents and because of repeated rapes she became pregnant. She further stated that she disclosed the occurrence to her father but her father turned a deaf ear towards her. On the above disclosure the present petitioner was arrested.
3. The petitioner applied post arrest bail in the Court of learned Session Judge Ghizer, who declined the bail vide order/judgment dated 28-08-2016 and being dis-satisfied from the said order/judgment, the petitioner filed the instant petition for grant of bail.
4. The learned counsel for the petitioner mainly contended that that the lady was a consenting party as she kept mum over a long period of 8/9 months and the delay in lodging of FIR is a factor, which militates against the complaint and the case is result of collusion of complainant and local Police. Per learned counsel to link the accused with the alleged offence, DNA test was mandatory to establish that the petitioner has committed the alleged offence. The learned counsel vehemently contended that the victim is a lady of an easy virtue and she was a consenting party to this nasty affair, which makes the case of the petitioner as one of the further inquiry, bringing his case with in the ambit of section 497(2), Cr.P.C. The learned defense counsel stated that the lady raised her finger against many persons of the village, who were arrested but later on released by the local police and the petitioner has been made a scapegoat. The learned counsel relied on 2006 YLR 730, 2014 PCr.LJ 456 and 2011 PCr.LJ 1619 in support of his contention, and on the strength of above law cases submits that petitioner be allowed bail as he is an old age and ailing person.
5. On the other hand the learned Dy. A.G forcefully rebutted the arguments of the learned counsel for the petitioner with the contention that the petitioner is directly charged in the FIR, with the specific allegations of rape and that to at many occasions. The learned Advocate General stated at bar that the lady being a weak creature of the nature, could not unfold the occurrence due to the reasons mentioned in her statement recorded by the Police under section 161, Cr.P.C. The learned Deputy Advocate General further contended that the offence is heinous one and falls with the prohibitory clauses of section 497, Cr.P.C. which dis-entitles the petitioner for concession of bail.
6. To satisfy myself regarding the submission of learned counsel for the petitioner that some other persons were also associated in the investigation and were later on released by the Police, I directed learned Dy. Advocate General to call for Police record. The Police file was seen by me in my chamber in presence of the parties, as the bar was observing 3 days "soug" due to sudden demise of one Hon'ble Judge of Supreme Appellate Court. From the scrutiny of the file, it transpired, that one Amir Ali was also arrested in the instant case by the police but police file is silent what happened with him later on despite of my all out efforts, there is not a single word about the said Amir Ali.
7. It is now a well settled proposition of law that reliance cannot and should not be placed on the "Zimines" of the case as it would be a dangerous trend but with due respect and in my bumble view, where a doubt lurks in the mind of the Court regarding complicity/involvement of an accused as in the present case, the hands of the Court cannot be tied up to refrain from perusing the record if dictates of justice so demands.
8. Apparently as observed supra, there, was a prima facie case against the petitioner but after going through the record of the case, I, have, changed my mind and feel that as evident from the orders of the learned trial Court the counsel for the petitioner repeatedly requested that a DNA test was the sole test to determine the involvement of the accused, which police has not bother to do for the reasons best known to them.
9. Such a long and inordinate delay in lodging the FIR and the arrest of one Amir Ali in the instant case and his mysterious release, without assigning any reason has made the instant case as one of the further inquiry.
10.The petitioner/accused is admitted to bail subject to furnishing bail bonds in the sum of Rs.
500,000/- (Rupees five lac only) with two sureties each in the like amount to the satisfaction of trial Court.