' Dur Muhammad Shah petitioner has sought his post-arrest bail in case F.I.R. No,149 of 2000 registered at Police Station Tiba Sultanpur, District Vehari on 23-5-2000 for an offence under section 10 of the Offence of Zina (Enforcement of Hudood) Ordinance, 1979 read with section 338-A, P.P.C.
2. According to the story of the prosecution as narrated in the F.I.R. The complainant Mst. Zohra Mai was sleeping in the compound of the house of one Iqbal Hussain who was married to the sister of husband of the complainant on the night in between 21/22-5-2000. It is alleged that the petitioner scaled over the wall and at the strength of pistol committed rape with the complainant. However, due to the alarm raised by the complainant P.Ws. Reached the scene of occurrence and the accused escaped while brandishing pistol from the scene of occurrence. It is further stated in the F.I.R. That the complainant narrated the whole incident to her husband and reported the matter to the police. It was also alleged in the F.I.R. That due to struggle while avoiding rape the complainant lost her pregnancy.
3. The petitioner was arrested in this case on 20-7-2001 and is in judicial lock-up. The learned counsel for the petitioner states that there was a delay of two days in the lodging of F.I.R.; that the petitioner was an old person aged 60 years; that two of the P.Ws. Mentioned in the F.I.R. Namely Bashir Ahmad and Muhammad Ramzan have sworn affidavits that no such occurrence took place; the swa bs were not taken for two days and medical evidence did not support the story of F.I.R. The learned counsel for the petitioner has also stated that the instant case was registered because of a land dispute between the brother of the petitioner and Mst. Gaman mother-in-law of the complainant. On the other hand, the learned counsel appearing on behalf of the State has contended that the petitioner is named in the F.I.R. And has committed a heinous offence which falls within the mischief of prohibitory clause of section 497, Cr.P.C. And that the challan has already been sent up to the Court and, therefore, no ground exists to extend the concession of bail to the petitioner.
4. I have heard the learned counsel for the parties and have also carefully gone through the record of the case. The delay in this case has been duly explained in the F.I.R. Itself as it has been mentioned that the A relatives of the petitioner had been beseeching the complainant for no getting the case registered. This explanation is plausible in the circumstances of the case as admittedly the petitioner is related to the complainant. The second point raised by the learned counsel for the petitioner is that the petitioner was aged person of 60 years old is of no avail as he cannot be termed as sick or infirm as according to the medical examination he was found to be potent. It is correct that Bashir Ahmad and Muhammad Ramzan who were cited as P.Ws. In the F.I.R.
Have sworn affidavits stating therein that no occurrence had taken place but the main witness of the case is complainant herself who has no reason to falsely implicate the accused in this case and her version as given in the F.I.R. Is fully supported by the medical examination as according to the opinion of the lady doctor who examined the complainant the injuries were found on the person of the complainant and the injuries and abortion was due to the violence committed during rape. The learned counsel for the petitioner has relied on the cases of Muhammad Nawaz Najja v.
The State 1991 SCM R 111 and Allah Bakhsh v. Nazar Hussain Shah and another 1979 SCM R 137. The facts of both these cases are distinguishable. In the afore-referred cases the material witnesses have sworn affidavits exonerating the accused but in the instant case the most material witness is victim herself who stood to her version and her story is supported by medical evidence. There is no reasorf whatsoever to disbelieve the complainant. It was held in the case of Mst. Bashiran Bibi v.
Nisar Ahmad Khan PLD 1990 SC 83 that mere filing of affidavits of certain Advocates would not attract the expression "further inquiry" and evidentiary value of such evidence was left to be determined by the trial Court. Reasonable grounds exist to connect the petitioner with the offences which attract the prohibitory clause of section 497, Cr.P.C.
5. For what has been discussed above I find no merit in this petition and the same is dismissed.