1. ' Applicant Abdul Rasheed is seeking bail in Crime No,8 of 2001 under section 10(3) of Zina (Enforcement of Hudood) Ordinance. 1979 read with sections 201/109/338-B, P.P.C., registered with Police Station Kalakot. The applicant moved bail application before the Sessions Judge South, Karachi but without success.
2. ' Brief facts of the case are that complainant Muhammad Bux had lodged F.I.R. At Police Station Kalakot on 9-1-2001 stating therein that he is a labourer and has four daughters and four sons. His one daughter, namely, Shabana aged about 16 years used to work in the house of the Rashid Brohi since last 5/6 years; she used to go daily at 11-00 a.m. In morning and used to return at 11-00 p.m. In the night. Complainant's Bhabi told him on 11th or 12th December, 2000 that Shabana was not feeling well since long. Upon inquiry she told the complainant that about five months back at the house of Rasheed when she was ironing the clothes, Rasheed took her in the bath room and kept cloth on her mouth and committed Zina with her. She had narrated the story to Saima, wife of the accused, who told her that whatever has happened, she should not narrate to anyone and thereafter Rasheed also threatened her; due to fear she did not tell anybody and kept quite; after few months she told the wife of Rasheed that she was feeling some trouble in her stomach; Saimma took her to one private hospital situated in Ka)akot and admitted her for two days where abortion was made. Saima told her not to tell about the incident to anybody else; the complainant then narrated the incident to his brother Imam Bux and went to Rasheed but Rasheed did not pay any heed to them; the complainant then lodged the F.I.R.
3. ' Mr. Raza Hashmi, learned counsel for the applicant has contended that the incident took place in the month of July, 2000 but the report has been registered on 9-1-2001 and there is delay of six months and no plausible explanation has been furnished by the prosecution; in support of his contention he has placed reliance on 1986 SCM R 938; wherein the Honourable Supreme Court has granted bail to the accused to the charge of kidnapping, Zina and murder on the ground of delay of 15 days in lodging F.I.R. Learned counsel for the applicant has contended with vehemence that there is delay of 6 months in lodging F.I.R. From the angle he makes out a case for grant of bail on this score. Mr. Raza Hashmi, learned counsel for the applicant has further elaborated that Shabana has been examined under section 164, Cr.P.C. After a lapse of seven months from the date of incident on 18-1-2001 when the incident took place in the month of July, 2000; there is inordinate delay of seven months from the date of incident and such statement can he looked with suspicion and furthermore the statement of victim Shabana is not being supported by medical evidence and according to him, if at all the above version is accepted of the prosecutrix, it could be determined that she was consenting party towards Zina committed by the applicant and according to him the case of wilful act under section 4 of Zina (Enforcement of Hudood) Ordinance, 1979 is not being covered as the present applicant appears to be consenting party because she has kept mum for pretty long time. Mr. Raza Hashmi, learned counsel for the applicant has further contended that P.D.S.P. Who is put incharge has opined that it is not a fit case for challan; the concerned S.H.O. Has been directed by P.D.S.P. To be taken to task and placed such report before this Court which is taken on record. However, learned counsel for the applicant has miserably failed to make out a case with regard to enmity as to why the present applicant is being implicated by the present complainant and the prosecutrix; he has made efforts to get out of this difficult situation but without success. Nevertheless. He has submitted that fact be borne out from the people of locality that the present applicant is innocent and he went a step further that Pesh Imam of the mosque is ready to swear in an affidavit in this regard. Learned counsel for the applicant submits that the wife of the applicant is also in trouble as there is allegation that she has taken active part in abortion, there is no evidence at all with the prosecution that she has taken part in abortion or abortion has taken place. The prosecution is not duly armed with any record whereby the prosecution can establish that such abortion has taken place; the prosecution, in the circumstances, has injected the elements of suspicion in the matter and the applicant is entitled to the concession of the bail.
4. However, the learned counsel for the applicant has not been able to satisfy the Court as to why Saima wife of the present applicant has not approached to any Court for obtaining pre-arrest bail.
5. Be that as it may, learned counsel for the applicant has laid much stress that from all the angle, in all fairness, the case is riddled with material contradictions and there is further scope of probe in the matter within the provision of section 497(2), Cr.P.C. And finally he has argued that the present applicant be granted bail.
6. ' Mr. Sharafat Ali, learned State Counsel made attempt to oppose the bail application of the present applicant and after rendering some arguments, learned State Counsel has very frankly conceded that the case of the present applicant is falling within the scope of further inquiry and he has recorded his no objection, if the bail is granted to the applicant.
7. ' I have considered the arguments rendered by the learned counsel for the parties.
8. Admittedly there is delay of six months which goes unexplained by the prosecution; prosecution is resting its evidence on the point of abortion but nowhere the prosecution has been able to establish that such kind of abortion has taken place; no material whatsoever in this regard has been placed before the Court; admittedly, statement of prosecutrix has been recorded after the delay of seven months and no plausible explanation has been furnished by the prosecution. The conduct of the prosecutrix also appeals the prudent mind that she might be a consenting party and the case of the present applicant tentatively not falling under section 4 of Zina (Enforcement of Hudood) Ordinance, 1979, and thus, the case of the prosecution is riddled with material contradiction and more over, the report of P.D.S.P. Also reveals that this is not a tit case for challan; concerned Investigating Officer has been directed to be taken to task which leads to inference that the investigation has not been conducted honestly and diligently and this has not been controverted by Mr. Sharafat Ali Khan, learned State Counsel.
9. ' The upshot of the above discussion is that the applicant has been able to create a dent in the version of the prosecution and has been able to make out a good prima facie case for grant of bail. Accordingly, the applicant is granted to bail in the sum of Rs,3,00,000 and P.R. Bond in the like amount to the satisfaction of the trial Court.