SAYYED MAZAHAR ALI AKBAR NAQVI, J.---Through the instant petition under Article 185(3) of the Constitution, of Islamic Republic of Pakistan, 1973, the petitioner has assailed the order dated 16.03.2022 passed by the learned Single Judge of the learned Lahore High Court Rawalpindi Bench, with a prayer to grant post-arrest bail in case registered vide FIR No. 776 dated 12.11.2021 under sections 376/ 292, P.P.C. at Police Station Noor Shah, District Sahiwal, in the interest of safe administration of criminal justice.
2. Briefly stated the prosecution story as narrated in the crime report is that husband of the complainant was residing abroad. The petitioner was friend of complainant's husband. Two/three months prior to lodging of the FIR, when the arm of complainant's son got fractured, she visited the house of the petitioner for treatment where the petitioner along with an unknown accused committed zina-bil-jabr with her and also took her explicit pictures. The petitioner also extracted Rs.1.00.000/- from the complainant.
3. At the very outset, it has been argued by the learned counsel for the petitioner that the petitioner has been falsely roped in this case against the actual facts and circumstances. Contends that there is inordinate delay of more than two months in lodging the FIR for which no plausible explanation has been given. Contends that the allegations levelled against the petitioner are false and frivolous and there is no evidence available on the record to connect the petitioner with the commission of the crime, as such, the petitioner deserves the concession of post-arrest bail.
4. On the other hand, learned Law Officer has defended the impugned order. It has been contended that the petitioner is specifically nominated in the crime report with a specific allegation of committing zina with the complainant against her wishes, therefore, he does not deserve any leniency by this Court.
5. We have heard learned counsel for the parties at some length and have perused the available record with their able assistance.
As per the contents of the crime report, the allegation against the petitioner is -that he not only committed rape with the complainant but also captured her video and explicit pictures and shared the same with her husband. Although, this is settled principle of law that in such like cases the statement of the victim itself in isolation is sufficient for proving the charge against the accused but the strict condition for this is that the same shall reflect that it is independent, unbiased and straight forward to establish the accusation against the accused. However, in the present case there are certain aspects of the matter, which need to be probed further. Allegedly the petitioner committed rape with the complainant 2/3 months prior to lodging of the FIR but no specific date and time of the alleged occurrence has been disclosed. The complainant did not utter even a single word for the delay in lodging the FIR. During medical examination of the complainant, the lady doctor found no visible redness, abrasion, bruise, laceration, tear or any other violence mark on the body of the alleged victim. Hymen was found to be old ruptured and there was no sign of bleeding. We have been informed that neither any DNA test nor grouping test of the semen has been conducted. In the absence of grouping test of the semen, it could not be held with certainty that the victim was subjected to zina by the petitioner especially when she is admittedly a married woman. Although, the video of the alleged occurrence was sent to the Punjab Forensic Science Laboratory for analysis but the report shows that the video was created on 25.04.2021 i.e. about seven months prior to the registration of the. FIR. This prima facie contradicts the prosecution story. However, we do not want to give any definite finding on this aspect, lest it may prejudice the case of either of the parties before the Trial Court. It is exclusive domain of Trial Court to decide this aspect after recording of evidence. On our specific query as to whether the mobile from which the video and explicit pictures were made belonged to the petitioner, the learned law Officer showed his ignorance. The mobile phone/instrument has also not been sent to FSL for analysis. The petitioner is behind the bars for the last one year. This court in a number of cases has held that liberty of a person is a precious right, which has been guaranteed under the Constitution of Islamic Republic of Pakistan, 1973, and the same- cannot be taken away merely on bald and vague allegations. Taking into consideration all the facts and circumstances stated above, we are of the view that the case "of the petitioner squarely falls within the ambit of section 497(2) entitling for further inquiry into his guilt.
6. For what has been discussed above, we convert this petition into appeal, allow it and set aside the impugned order. The petitioner is admitted to bail subject to his furnishing bail bonds in the sum of Rs.100,000/- with one surety in the like amount to the satisfaction of learned Trial Court.