' A case under section 10, Offence of Zina (Enforcement of Hudood) Ordinance, 1979 was registered against the petitioner on the ground that he committed Zina-bil-Jabr with Mst. Bashiran Bibi daughter of Mehr Ali complainant, while she had gone out to ease herself.
2. The petitioner was allegedly armed with a pistol and on pistol point he put off the Shalwar of the victim and committed Zinabil-Jabr with her. The noise raised by the victim attracted the complainant besides Allah Ditta and Ashraf P. Ws. On seeing them the accused ran away.
3. The learned counsel for the petitioner has submitted that occurrence had allegedly taken place at 6-00 p.m. On 16-3-1998 whereas the F.I.R., in this case was lodged on 2-4-1998 i,e,, after about 16 days; that medical report does not support the prosecution version in respect of commission of Zina-bil-Jabr. In this regard, it is contended that Report of the Chemical Examiner was negative whereas according to Medico Legal examination of the victim, the W.M.O. Had made the observation that she was used to sexual intercourse. Opinion about the fresh intercourse was to be given after the report of vaginal swa bs and chemical analysis was received from the Chemical Examiner. On receipt of the Report of Chemical Examiner, the W.M.O. Made the final opinion that the victim was not subjected to sexual intercourse.
4. Lastly it was contended that recovery of pistol was not effected from the petitioner and that Investigating Officer also came to the conclusion that it was only an attempt of Zina and the story that she was subjected to sexual, intercourse was not substantiated by the medical evidence. A report under section 173, Cr.P.C. Was submitted whereby the petitioner was challaned under section 18, Offence of Zina (Enforcement of Hudood) Ordinance, 1979.
5. The learned counsel for the State opposed the bail petition on the ground that the delay per se was not relevant in such like cases as the people were reluctant to report such matters which touch the prestige of their women-folk. Hence the delay in lodging the F.I.R., was not crucial.
6. In reply the learned counsel for the petitioner relied on Khan Muhammad v. State reported as PLD 1986 FSC 262, to contend that delay in filing the F.I.R., in the given circumstances had rendered the case for further inquiry particularly when the medical evidence also did not support that the victim was subjected to sexual intercourse. Reliance was also placed on Shabbir Ahmad Wattoo v. The State reported as 1983 PCr.LI 2014 and Muhammad Siddique v. The State reported as 1985 PCr.LJ 658 (Lahore) to argue that vaginal swabs were not found stained with semen nor any mark of violence was present on the person of victim being habitual of sexual intercourse.
7. In view of the foregoing facts, it appears to be a case of further inquiry, Accordingly allowing this petition, the petitioner is admitted to bail in the sum of Rs,20,000 with one surety in the like amount to the satisfaction of learned Trial Court.