' Mst. Shamshad Mai petitioner is the real sister of Nazir Ahmad petitioner who have filed this bail petition. Amir Ali real brother of the petitioners lodged a report with Police Station Kehror Pacca on 25-4-1982 alleging therein that both the petitioners had illicit relation with each other and they were spotted in an objectionable position a month and a half prior to the registration of the case, by Bilqees Begum P.W., wife of Nazir Ahmad petitioner and Amir Ali complainant. The complainant subsequently informed his brother Muhammad Sharif about the said affair. Ultimately the case was registered and investigated by the local police. The Additional Sessions Judge, Multan, by his order, dated 15-6-1982 refused to grant bail to the petitioners, hence this petition.
2. Both the petitioners were arrested on 26-4-1982, Mst. Shamshad Mai is stated to be the wife of one Mukhtiar Hussain P.W. She allegedly filed a suit for dissolution of marriage on 3-4-1982 in Family Court at Lodhran. She was not medically examined by the police on 28-4-1982. Her viginal swa bs prepared by the medical witness were found to be stained with semen subsequently. Nazir Ahmad petitioner is a clerk in Education Department at Sahiwal.
3. I have heard the learned counsel for the petitioners as well as for the State and also perused the record produced by Maqbool Ahmad, A .S .1.
4. Learned counsel appearing on behalf of the petitioners contended that there is a delay of one and a half month of reporting the matter to the police by the complainant, who is no less than brother of the prosecute. The other witnesses who happened to be the wife of the complainant as well as his brother's wife did not support the occurrence which shows that the prosecution story is phony. The whole plot was woven by the complainant, because his father had mutated some land in the name of Nazir Ahmad petitioner and deprived the complainant of his share in the inheritance through an 'Aaq Nama' published in daily 'Imroze' dated 12-4-1982 about a fortnight before the registration of this case. He further contended that it is unimaginable that a real brother would be so base to cultivate sexual relations with real sister. He next contended that the only eye-witness of the occurrence besides the complainant is Mst. Bilqees who has not supported the case during the investigation. Lastly, he contended that the real father of the complainant namely, Muhammad Nawaz has sworn affidavit as to the innocence of the petitioners, He is present in Court today and is identified by the Investigating Officer to be the real father of the complainant and the petitioners,
5. Learned counsel for the State has vehemently opposed this petition and argued that it is not believable that a real brother would level such a serious allegation against his own sister and brother unless there has been some truth in the allegations. He next contended that vaginal swabs of Mst. Shamshad petitioner taken by the medical witness were found to be stained with semen by the Chemical Examiner. This fact alone goes a long way to establish that Mst. Shamshad Mai had indulged in illicit intercourse with her brother Nazir Ahmad petitioner because she was not living with her husband Mukhtiar P.W. at the time of her arrest.
6. I have considered the points raised by the learned counsel for the parties with care, It is stated in the F.I.R. that after the day of alleged incident Mst. Shamshad Mai was taken away by her husband Mukhtiar Hussain to his house and kept her there for a fortnight. I feel that this admission prima facie explains the presence of semen detected in the virginal swabs of Mst. Shamshad Mai. It is a fact that a fortnight before the registration of the case, the father of the complainant got published an 'Aaq Nama' depriving the complainant of his share in the property of his father. It is not controverted that Nazir Ahmad petitioner had received 170 Kanals of land from his father to the exclusion of the complainant. These circumstances, appear to have annoyed the complainant. The statement of real father of the petitioners made in Court today absolving the petitioners of the charge leveled against them has prompted me to exercise my discretion in favour of the petitioners,
7. Without expressing any opinion as to the correctness or otherwise of the facts of the case, I am of the opinion that the question, whether the petitioners who admittedly are the real sister and brother inter se were too base and depraved to have committed sexual intercourse with each other, needs serious consideration and further inquiry especially in view of the existing enmity between the complainant and the petitioners,
8. For the foregoing reasons, I feel inclined to allow this petition. The petitioners are directed to be released on bail subject to their furnishing bail bond in the sum of Rs,10,000 each with one surety in the like amount each to the satisfaction of the Assistant Commissioner, Lodhran.