1. Granted subject to all just exceptions.
2. The applicant Muhammad Amin has applied for post-arrest bail in a case registered against him vide F.I.R. No,73 of 2001, dated 2-5-2001 under sections 10, 11 and 16 of the Offence of Zina (Enforcement of Hudood) Ordinance, 1979 read with sections 363 and 34, P.P.C. Registered at Police Station Pano Akil, District Sukkur.
1. ' The allegation against the applicant is that he enticed away Mst. Arbeli alongwith other co- accused for illicit purpose. It is submitted by the learned counsel for the applicant that the applicant has been falsely been involved in this case and co-accused namely Abdul Hameed son of Ahmed Jatoi has been released on bail by this Court vide order, dated 19-10-2001. Learned counsel for the applicant further contended that the case of applicant is identical to the case of co-accused Abdul Hameed who has been released on bail.
2. ' The bail plea was filed in the trial Court which was dismissed on 5-11-2001 by the learned 3rd Additional Sessions Judge, Sukkur hence the applicant has made similar application before this Court.
3. ' Brief facts of the prosecution case as depicted in the F.I.R. Lodged by complainant Muhammad Alam Mochi on 26-5-2001 are reproduced hereinbelow in extenso:-- "Complaint is that I am cultivator by profession. Mst. Arbeli aged about 30/31 years is my wife and Fouzia aged about 6/7 years is my daughter. On 2-5-2001 in the morning time at about 5-30 hours and I went outside from my house towards my land for harvesting the wheat crop. At about 9-00 hours I returned to my house and saw that my wife Mst. Arbeli and daughter Fouzia were not present there. I made enquiry from the locality about my wife and daughter but could not get any information. Therefore, I went to my brother Muhammad Aachar and relative Muhammad Essa son of Muhammad Sachal Machi. Thereafter, I alongwith said witnesses went in search of my wife and daughter. On 25-5-2001 Arbab son of Muhammad Sharif and Abdul Ghani son of Ali Bux both by Caste Mochi met us, informed us that my wife Mst. Arbeli and my daughter Fouzia were in the company of Muhammad Amin son of Abdul Haque Jatoi, Ali Murad son of Ahmed Jatoi, Rafique son of Zangi Jatoi, Abdul Hameed son of Ahmed Jatoi, resident of Deh Baqabad Taluka Pano Akil were going on the path of Korai Canal and seeing them they hurriedly came down from the path of canal and went away. On such information I alongwith my brother Muhammad Achar and relative Muhammad Essa son of Muhammad Sachal Mochi went to the house of the accused where accused Muhammad Dear Mom and Dad, Amin Jatoi son of Abdul Hameed Jatoi met us to whom we asked for return of my wife and daughter who replied that he alongwith Ali Murad, Rafique Jatoi, Abdul Hameed Jatoi have abducted my wife and daughter and further told that they will not return them to me. Now I have come to lodge report that above-named accused have enticed away my wife Mst. Arbeli with intention to commit Zina with her and my daughter is also with my wife. I am complainant action be taken."
4. ' It is contended by the learned counsel for the applicant that after due investigation of the crime the applicant alongwith other co-accused were sent up to stand trial proceeding in the Court of law. It is further argued by the learned counsel that there is delay of more than 24 days in lodging of F.I.R. For which no plausible explanation is advanced by the complainant and the during the investigation of the case the statement of eye-witnesses were recorded on 11-8-2001 whereas the F.I.R. Of the incident was lodged on 26-5-2001. The statement of the prosecutrix was recorded under section 164, Cr.P.C. On 4-8-2001 which creates the doubt in the veracity of the prosecution case. The prosecutrix has stated that she was abducted forcibly the accused party in the car whereas P. Ws. Arbab and Abdul Ghani have stated that they have seen the victim in the company of the accused on the top of Korai Wah while going on foot. It is further urged by the learned counsel that the prosecutrix was produced before the Medical Officer after four days i,e, on 9-8- 2001 and the report of the Medical Officer and Chemical Analyzer are in negative. The learned counsel for the applicant has further contended that in view of the dicta laid down in the case of Rawato and others v. State 2000 PCr.LJ 333 (FSC). The observation of Honourable Shariat Court is reproduced as under:-- ' A Division Bench of this Court has taken pains to decide this intricate question in a ruling cited as 1999 M LD 2622 (Ref: Lal Muhammad alias Laloo and another v. State.) The relevant paras. Of this ruling read as under: "In Jensen v. State 153 N.W. 2d 566 (Wis.) 1967, it was held long. Ago that presence of seminal fluid in the vagina of the female is a conclusive evidence that coitus has occurred. Seminal fluid (or semen as used in common parlance) consists of two major fractions. One is the spermatozoa! Fraction secreted by the tests. The other is the prostate secretion. The two major fractions are secreted independently, but the prostatic secretion precedes the spermatozoal secretion. In a classic on Forensic Science edited by Cyril H. Wecht, Vol.2 Publication New York 1981, it is discussed as under: 'Determination of time from intercourse to examination, based on the presence of spermatozoa is subject to much disagreement. Such disagreement may be, due in part, to the natural variation in the vaginal milieu. It is generally accepted that the amount of vaginal secretion and its chemical constitutes have an effect on the residual time for spermatozoa. It is also known that these factors vary with sexual excitement, so the vaginal milieu in cases of rape is probably considerably different than it is in serenity studies'. (Quotation from 40 American Journal of Clinical Pathology 1963). Morphologic survival time of spermatozoa in the vaginal milieu is calculated by Pollak to be between 30 minutes to 17 days depending upon the availability of quality and quantity of the activating agents and chemical constitutes of the vaginal milieu'. All this discussion made above is about non-motile sperms. So far as the minimum and maximum time of finding motile spermatozoa in the vagina is concerned, Dr. S. Siddiq Hussain in his work 'A Text Book of Forensic Medicine and Toxicology' (Published by The Caravan Book House, Lahore) is giving his authoritative point of view in 1989 as under: ' In the living woman, motile spermatozoa in the vagina can be found over 100 hours after coitus and non-motile spermatozoa as far as long as 17 days. In the dead they may even survive longer (Sharp No, 1963, J. Canad. Med. Ass.89, 513)'.
5. ' Now if the time of 100 hours is taken to be the yardstick for calculation of the motile spermatozoa having stuck on the cotton swa b prepared by Dr. Zaibun Nisa (P.W.1), it shall come to 4 days and 4 hours. Therefore, in case the swa bs were prepared from inside.The vaginal orifice, the motile sperms and naturally semen in its original form were correctly detected by the Chemical Examiner.
6. ' In Forensic Science Col. 2, 25, 09(b) (supra), it has been authoritatively declared that spermatozoa deposited on surfaces other than in the vagina will survive for great length of time depending on the preservation techniques that are used. We have recovered spermatozoa from cotton garments six months after deposition.
7. ' Fornstein in his work 'Investigation of Rape: Medico-Legal Problems' Publication, 1963, has reported the recovery of spermatozoa on, cotton after fifty years storage under special conditions.
8. ' Second important fraction of semen i,e, prostatic secretion contains a very active enzyme known as Acid Phosphatase. Its activity is greater than that of any other human body fluid. Although Pinto in his article 'Rape for the Defence: Acid Phosphates' published in the Journal of Forensic Medicine 147 (1959) states that Acid Phosphates activity disappears after 48 hours in the vagina, but Cyril H.
9. Wecth disagrees with him and states that the original activity of this Acid varies tremendously from person to person and due to this factor, decay rate determination for it in the vagina is subject to a very larger error."
10. ' It is further urged by the learned counsel that according to the 164, Cr.P.C. Statement of the victim, there is allegation against the applicant/accused that the act of Zina-bil-Jabr has been committed by the applicant/accused but there is no evidence on record to prove the allegation as the medical certificate and the Chemical Analyzer report are in negative which falsify the allegation of the prosecutrix. It is further contended by the learned counsel that there is only word of victim against accused and no witness is inexisting to support the allegation of the prosecutrix.
11. The learned counsel for the applicant has relied upon the case of Ali Dino v. State 1988 PCr.LJ 53, Muhammad Siddique v. State 1985 PCr.LJ 658, Shabir alias Babu v. The State 1994 PCr.LJ 914 and Khalid v. State 1995 PCr.LJ 968.
12. ' Mr. Ghulam Sarwar Korai, learned counsel for the State has conceded for the grant of bail in the ground that there is in ordinate delay in lodging the F.I.R. And the prosecution witnesses were examined on 11-8-2001 whereas the F.I.R. Of the incident was lodged on 26-5-2001 whereas the incident had taken place on 2-5-2001 in between 5-30 to 9-00 p.m. And the co-accused Abdul Hameed has been released on bail by this Court.
13. ' I have gone through the material placed on record and heard the arguments of the learned counsel for the parties. There is an unexplained delay of 24 days in lodging of the F.I.R. Whereas the P.W. Namely Abdul Ghani and Arbab were examined on 11-5-2001 which creates doubt on the veracity of the prosecution case. According to the prosecution case the prosecutrix was abducted forcibly by the accused party in the car whereas P. Ws. Have stated that they have seen the victim in the company of the accused on the top of Koari Wah while going on foot. According to the medical report the prosecutrix was referred for medical examination but no marks of violation were found on her body. According to the investigation it is urged that Amin and Sodho have committed Zina with the prosecutrix and she was confined with the said accused but there is only word of the prosecutrix whereas medical evidence and the Chemical Analyzer report negate the allegation contained in 164, Cr.P.C. Of the prosecutrix. The co-accused Rafiq was let of by the police during the course of investigation. The trial Court had only rejected bail application on the ground that applicant/accused had committed Zina with the prosecutrix but the medical evidence was not taken into consideration by the trial Court while rejecting the bail plea of the applicant/accused.
14. According to the medical jurisprudence the duration of retaining of semen in the vagina can be found over 100 hours after coitus and non- A motile spermatozoa as far as long 17 days. In the dead they may even survive longer. Now if the time of 100 hours is taken to be the yardstick for calculation of the motile spermatozoa having stuck on the swab taken by the Doctor, it shall come to 17 days. Whereas the victim was produced before W.M.O. On 9-8-2001. According to allegation in the 164, Cr.P.C. Statement of victim it is alleged that applicant/accused and the co-accused Sodho committed Ziva and kept her confined for a period from 2-5-2001 to 4-8-2001 and during the confinement the prosecutrix was handed over by time to time to other accused. The medical report falsifies the version of the prosecutrix. The prosecutrix was detained by co-accused Sikandar Ali Sanjrani accused Amin and Sodho Khan. It is clear from the F.I.R. That the husband of the victim had enmity over an agricultural land between Mochis and Jatois. Since there is alone word of the abductee/victim that the applicant has committed Zina with her is in conflict with the medical evidence and Chemical Analyzer report. In view of the dicta laid down in the abovecited case, I am of the view that the applicant/accused is entitled for the concession of bail and it requires further enquiry as envisage under section 497(2), Cr.P.C.
15. ' Consequently the applicant is entitled for the concession of bail, resultantly bail is granted to the applicant/accused in the sum of Rs,2, 00,000 and P.R. Bond in the like amount to the satisfaction of the trial Court.
16. ' The observations made in this order are tentative in nature and the trial Court may not be influenced while deciding the case on merits.