ORDER KHAWAJA MUHAMMAD SAEED, C.J.- This revision petition is directed against tho order passed on May 12, 1997 by the Additional District Court of Criminal jurisdiction, Muzaffarabad whereby the bail was refused to the petitioners.
2. The petitioners are alleged to have committed Zina-bil-Jabr with Mst. Tahmeena s/o Muhammad Aslam, aged 17 years. She was recovered by Shahid Iqbal, S.I. Officer Incharge Police Chowki Bararkote on March 17. 1997 at 7-30 p.m. On the basis of statement made by the alleged defend Mst. Tahmeena. a case under sections 11/19 of the Offence of Zina (Enforcement of Hadood)
Act read with Section 342 A.P.C . Was registered against the petitioners and two others. The' petitioners were allowed pre-arrest bail by the District Court of Criminal Jurisdiction' M'abad on March 20, 1997.
However this order wa$ not confirmed on April 26. 1997. They were, therefore, arrested by the police on the same day. The petitioners moved an application for bail before the trial Court on April 26.
1997 which was dismissed by the said Court on April 29, 1997. An appeal preferred by them on May 3, 1997 before the District Court of Criminal Jurisdiction*M'abad was made over for disposal to the Additional District Court of Criminal Jurisdiction. Muzaffarabad who declined the concession of bail to. The petitioners vide order dated May l2. 1997. Hence the present revision petition.
3. Mr. Ghulam Mustafa Mughal, learned Counsel for the petitioners argued that no offence under sections 10/11/19 of the Offence of Zina (Enforcement of Hadood) Act was made out against the petitioners. According to him, his clients have falsely been involved in a concocted case. He in support of his contention invited the attention of this Court to the medico-legal report wherein hymen was found intact and no resent sign of intercourse was noticed. It was further observed by the Doctor that there w ere no dead or alive Spermatozoid seen. He further argued that in this case no clothes or anything else was recovered which could justify that the same were stained with semens. At the most, he argued that it could be a case under Section 342 P.C. His clients, in view of these facts, were entitled to avail the right of bail during their trial in the case. He further argued that the Doctor had not observed any mark of straggle or injury on the body of the prosecutrix.
Therefore, the medical report is directly in conflict with the F.I.R, and version allegedly made by the victim before the Magistrate under Section 164 Cr.P.C.
4. While opposing the bail application, the learned Additional Advocate General argued that the poor girl who was over-pow'ered by for male accused persons was detained in a room by them.
This fact was proved from the evidence so far collected in the investigation by the prosecution. She was recovered from the room on secret information by Shahid Iqbal, S.I. Police Chowki Brarkote on March 17, 1997 at 7-30 p.m. Therefore, in this case, if any concession has been given by the Doctor to the accused-persons that should not be given much importance. The story narrated by the victim should not be taken lightly. He supported the orders passed by the Courts bellow while refusing the concession of bail to the accused-petitioners.
5. I heard the learned Counsel for the parties and with the help of the learned Additional Advocate General hate gone through the police record.
6. I totally agree with the learned Additional Advocate General that absence of the marks of struggle on the body of victim is not the disproof of the evidence of Zina particularly when in the circumstances of the case, the victim appears to be a helpless girl as compared to the assailents.
However in this case, in the light of the F.I.R, and statement recorded under section 164 Cr.P.C, the medico legal report is very important. In the F.I.R, it is alleged that when Mst. Tahmeena, the victim of offence, was recovered from a room of the Dispensary located at Brarkote by Shahid Iqbal. S.I.
Police Chowkt Brarkota. She told police officer that Tariq. Wasif present petitioners and Nisar Ahmad whose bail matter has not so far been decided by the trial Court, not only kept her in illegal detention in that room but also committed Zina upon her against her will for three days. They used to cor unit Zina one after the other. This assertion was totally denied by the Doctor in the medico legal report which being relevant is reproduced for the convenience of reference.
(1) Hymen is not intact. She is not vergin. No recent sign of intercourse.
(2) According to H.V.S.Report, no dead or alive spermatozoid seen. Conclusion no recent intercourse.
(3) According to X-Ray report, she is 17 years old.
(4) No signs of struggle seen.
5. Prima facie, from the tentative assessment of the material collected so far, my view is that either the girl produced before the Lady Doctor was not Mst. Tahmeena or the story allegedly marrated in this case by Mst. Tahmeena against the petitioners is not free from doubt. The prosecution in this case has owned the medico-legal report which has been discussed in the preceding pan of this order. The case of the petitioners in the light of this important evidence, is one of finisher inquiry'.
6. The petitioners are, therefore, admitted to bail in the sum of Rs. 2.0. 000/- each with one surety in the like amount to the satisfaction of any Magistrate First Class, Muzaffarabad.