MOHAMMAD IBRAHIM KHAN, J. Petitioner through the instant petition seek his post-arrest bail in case FIR No. 789 dated: 10.11.2021 under section 376, P.P.C. read with section 53 of Child Protection Act and section 3 of TiP registered at Police Station, Sara-e-Saleh, District, Haripur, as the same relief was, declined to him by the learned lower forum.
2. I have given my anxious thought to the blue streak arguments of learned counsel for the petitioner, learned A.A.G. and gone through the record with their able assistance.
3. Complainant absent today, who was present on previous date submitted an affidavit stating therein, that the accused/petitioner was nominated/charged due to mis-conception.
4. Although, the accused/petitioner is directly charged in the present FIR by the complainant for committing rape with his minor daughter, which is a heinous crime, however, the medical report available on file negates the version of complainant, which reads as under:- Description of Injuries:- No resistant mark on body.
No bruise/rashes/redness on body.
No secretions/redness/tear noted on examination of genitation.
It is pertinent to note here that at the end of said report, the medical officer opined for gynecologist advise, however, learned A.A.G. submitted that the complainant has refused to conduct examination of her minor daughter from gynecologist.
5. So far as applicability of section 53 of the Khyber Pakhtunkhwa Child Protection and Welfare Act, 2010 (hereinafter to be referred as the Act of 2010), is concerned, it depicts that this law was specially introduced/enacted and promulgated in the Khyber Pakhtunkhwa with particular purposes i.e. to provide for the care, protection, maintenance, welfare, training, education, rehabilitation and reintegration of 'children as risk' in the Khyber Pakhtunkhwa. For the sake of convenience and ready reference, the preamble of the Act of 2010, is reproduced below:- "WHEREAS, it is expedient to provide for the care, protection, maintenance, welfare, training, education, rehabilitation and reintegration of children at risk in the Khyber Pakhtunkhwa".
"Child at rig" has been defined under section 2(I)(e) of the Act in the following words:- "Child at risk" means a child in need of protection, who
(i) is at risk, including an orphan, child with disabilities, child of migrant workers, child working and or living on the street, child in conflict with the law and child living in extreme poverty.
(ii) is found begging; or
(iii) is found without having any home or settled place of abode or without any ostensible meaning of subsistence; or
(iv) has a parent or guardian who is unfit or incapacitated to exercise control over the child; or
(v) lives in a brothel or with a prostitute or frequently visits any place being used for the purpose of prostitution or is found to associate with any prostitute or any other person who leads an immoral or depraved life; or
(vi) is being or is likely to be abused or exploited for immoral or illegal purposes or gain; or
(vii) is beyond the parental control; or
(viii) is imprisoned with the mother or born in jail;
(ix) has lost his parents or one of the parents and has no adequate source of income; or
(x) is victim of an offence punishable under this Act or any other law, for the time being in force and his parent or guardian is convicted or accused for the commission of such offence; or
(xi) is left abandoned by his parent or parents as the case may be, which will include a child born out of wedlock and left abandoned by his parent.
6. Keeping the preamble of the Act in juxtaposition with the definition of the "Child at risk" as contemplated under section 2(1)(e) of the Act coupled with the facts and circumstances of the instant case, it could not be ascertained as to whether the alleged victim, falls under the definition of "Child at risk" or otherwise. In such an eventuality, the applicability of sections 53 of the Act of 2010, to the case of petitioner is yet a begging question. Wisdom can be derived from case law reported in 2016 SCMR 1523, 2014 MLD 190 and 2018 YLR Note 114.
7. At the moment, there is no incriminating evidence available on record to show any nexus of the accused/petitioner with the commission of rape with minor daughter of complainant, at least at this stage.
8. Moreover, in the instant case, no compliance with the provision of section 164-B, Cr.P.C. has been made because no samples for DNA test have been obtained either from the accused/petitioner or victim despite the fact that the word "shall" is used in the said provision, making its applicability mandatory.
9. Investigation in the case is complete and accused/petitioner is no more required to the prosecution for the very purpose. Even otherwise, in view of the above stated facts, the case calls for further inquiry under subsection (2) of section 497, Cr.P.C, therefore, further retention of the petitioner in jail will serve no useful purpose.
10. Apart from the above, it has been held time and again by the august Supreme Court that bail does not mean acquittal of accused but only change of custody from Government agencies to the sureties, who on furnishing bonds take responsibility to produce the accused whenever and wherever required to be produced. Reliance could be placed on case reported in 2008 SCMR 807 "Haji Muhammad Nazir v. State".
11. So, by cutting the cackle, on tentative assessment of material available on file, a case for the grant of bail is made out. Consequently, this bail application is allowed and accused/petitioner is admitted to bail provided he furnishes bail bonds in the sum of Rs. 200,000/- (two lakh) with two sureties, each in the like amount to the satisfaction of Illaqa/Duty Judicial Magistrate, concerned, who shall ensure that the sureties are local, reliable and men of means.
12. Before parting with this order, this court finds it necessary to mention that all the observations recorded above are tentative assessment just for the disposal of bail petition and not intended to influence the mind of trial Court, which is free to appraise the evidence strictly in accordance with law and merits of the case.