This is a petition for pre-arrest, bail---on behalf of Shabbir Ahmad Wattoo, petitioner, in a case under section 10(2) of the Offence of Zina (Enforcement of Hudood) Ordinance, 1979 registered at Police Station Luddan vide F. I..R. No. 162, dated 19th October, 1982.
2. The prosecution case is that the petitioner committed zina-bil-jabr with Mst. Bashiran at 10/11 p. m. On 18th October, 1982 in her house situated in Mauza Allahabad.
3. Learned counsel for the petitioner has submitted that it is a false case wherein, the petitioner has been involved on account of enmity. He explains that the landlord of the husband of the alleged prosecutrix is on inimical terms with the petitioner inasmuch as civil litigation is going on between them. As against this, the learned State Counsel assisted by the learned counsel for the complainant has seriously opposed this application on the ground that since Mst. Bashiran has levelled allegation of zina-bil, jabr against the petitioner, it is not a fit case for the pre-arrest bait to the petitioner. The learned counsel for the complainant has also submitted that the petitioner having absented himself from the Court of the learned Sessions Judge at the time of the hearing of his bail application, is not entitled to the concession of pre-arrest bail. The learned counsel has relied upon a case reported as Nasir-ud-Din Shah v. The State (PLD 1963 Lab. 516).
4. After hearing the learned counsel for the parties, I find that the authority, i.e. PLD 1963 Lah. 516, is not applicable to the facts of this case, inasmuch as in the case in hand the petitioner had approached the learned Sessions Judge in the first instance but application was dismissed on account of his non-appearance on that date. At limine stage of this petition, the learned counsel for the petitioner bad explained that the petitioner could not appear before the learned Sessions Judge on account of his illness and he had shown me the medical certificate (Annex. E/1) dated 31st October, 1982. It was for these reasons that I had admitted this for regular hearing. Since I had admitted the, petition for regular hearing knowing that petitioner had absented himself on 31st October, 1982, at the time of the hearing of his petition before the learned Sessions Judge, I need not send him back to the learned Sessions Judge for the re--consideration of his application for pre-arrest bail.
5. The prosecution case is that the petitioner had forcibly committee sexual intercourse with Mst.
Bashiran. The alleged prosecutrix was medically examined by the Lady Doctor, she did not find any mark of violence on her body. According to her report she was habitual to inter--course, three vaginal swa bs were taken and sent to the office of the Chemical Examiner. The chemical report has been shown to me. According to it, swabs were not stained with semen.
6. Without expressing any opinion-on the merits of the case lest it may prejudice the case of either party, I am of the opinion that in view of the medico-legal report and report of the Chemical Examiner it is a fit case for the confirmation of the interim pre-arrest bail granted to the petitioner on 3rd November, 1982. Order accordingly. This petition stands disposed of.