' This order shall dispose of an application under section 497(5), Cr.P.C. Moved by Allah Yar complainant in a case under section 10 of the Offence of Zina (Enforcement of Hudood) Ordinance (VII of 1979) registered against Shabbir Ahmad alias Shabbir Hussain respondent with Police Station City Shujabad on 25-4-1992. The respondent was allowed pre-arrest ad interim bail by the learned Additional Sessions Judge, Multan vide order, dated 27-4-1992 which was ultimately recalled on 20-5-1992. He was arrested on 27-8-1992 and post-arrest bail was allowed to him by a learned Additional Sessions Judge, Multan on 26-9-1992.
' The facts of the case as narrated in the F.I.R. Are that the ladies and gents from his close relations were gathered in his house on 22-4-1992 to enjoy his marriage ceremony to be held shortly. Mst.
Parveen, a minor daughter of the complainant who is a student of 5th Class was all alone in her house adjoining to the house of respondent as the complainant and other members of the family were also present in his house. Shabbir Hussain respondent with his co-accused Farooq taking benefit of the situation at about 9-00 p.m. Went to the house of complainant and prevailing over Mst. Parveen committed forcible intercourse with her. On her hue and cry Taj Muhammad, Zaffar Iqbal and some other persons reached at the spot and accused ran away from there.
' The matter was reported to the police on 26-4-1992 with the explanation that the complainant was compelled not to lodge the report and settle the matter in the Bratheri. However, before lodging report, Mst. Parveen was got medically examined on 25-4-1992 and three vaginal swabs taken by the lady doctor were sent to Chemical Examiner and the report received was positive. Mst.
Parveen was found subjected to sexual intercourse.
4. The respondent was allowed bail after arrest by the learned Additional Sessions Judge, Multan on the basis of remarks of the lady doctor in medical report that the hymen of prosecutrix was torn and her vagina admitted two fingers easily and there is no mark of injury on her private part. The learned Additional Sessions Judge forming opinion that the prosecutrix was habitual to the act of sexual intercourse and was a lady of easy virtue, held it a case of further inquiry.
4. The learned counsel for the petitioner contends that the prosecutrix is a student of 5th Class and is a minor girl who was subjected to forcible intercourse but the learned Additional Sessions Judge without looking at the facts of the case, formed an opinion of false implication only on the basis of medico-legal report. The learned State counsel has supported the cancellation of bail.
5. The learned counsel for the respondent vehemently contended that about 12 persons of the locality have sworn affidavits to the effect that Shabbir respondent was busy in entertaining the guests in his house which fact is also supported by the contents of the F.I.R. He with reference to the medical evidence emphasised that the prosecutrix being a lady of easy virtue cannot be a truthful person to be relied and submitted that the challan has already been given therefore, discretion exercised by the learned Additional Sessions Judge may not be interfered at this stage.
6. I have considered the arguments advanced by the learned counsel for the parties and have perused the record carefully.
7. Mst. Parveen in her statement under section 161, Cr.P.C. Has categorically stated that Shabbir Hussain with the help of his co-accused Zafar Iqbal took her to the Kotha of animals and after removing her Shalwar forcibly committed sexual intercourse with her when she was alone in the house. She has given a direct account of occurrence with the allegation of Zina duly supported by the medical evidence and positive report of Chemical Examiner, therefore, the arguments that the occurrence did not take place or prosecutrix was not subjected to sexual intercourse are not available to the petitioner. The contention that the petitioner was falsely implicated over a dispute of water between the parties is also devoid of force. The complainant and his other family members participated the function in connection with the marriage of respondent which is suggestive of cordial relations between the families. The plea taken by the respondent that he was busy with guests in his house is a matter of evidence and no opinion can be given at this stage on the basis of affidavits. Both the houses arc adjacent to each other, therefore it was quite possible for respondent to join his guests after doing his job. Anyhow, it is not his case that prosecutrix was also among the guests in his house.
8. The learned counsel laid much stress that Mst. Parveen being a lady of easy virtue is not reliable.
I am afraid, the opinion of doctor neither can be utilized to disbelieve the lady and the prosecution case nor to suggest that respondent did not commit any offence. The allegation of Zina against the respondent can also be not doubted for reason of lady being habitual to intercourse. However, in view of the opinion of doctor and other attending circumstances at the most it can be suggested that Mst. Parveen was a consenting party but the consent of prosecutrix cannot exonerate the respondent of the charge and the statement of the lady on the basis of opinion of lady doctor cannot be thrown away. The evidence collected in the case is sufficient to connect the respondent with the commission of offence falling within the prohibitory clause of section 497, Cr.P.C. And there is no scope of further inquiry to attract the provisions of section 497(2), Cr.P.C. For the purpose of grant of bail. The respondent even if committed intercourse with the girl with her consent was not entitled for concession of bail in the, circumstances of the case. The learned Additional Sessions Judge without taking notice of the facts travelling on the basis of medical report granted the bail which is not proper exercise of discretion. Resultantly, the application for cancellation of bail is accepted and the to the respondent by the learned Additional Sessions Judge is hereby recalled.
Bail cancelled.