Medical evidence was prima facie in contradiction with the version of victim

 PLJ 2009 Cr.C. (Lahore) 1058

[Multan Bench Multan]

Present: Zafar Iqbal Chaudhry, J.

SHABBIR HUSSAIN--Petitioner

versus

STATE and another--Respondent

Crl. Misc. No. 3204-B of 2008, decided on 20.1.2009.

Criminal Procedure Code, 1898 (V of 1898)--

----S. 497(2)--Pakistan Penal Code, (XLV of 1860)--S. 376--Bail, grant of--Further inquiry--Medical evidence was prima facie in contradiction with the version of victim--Allegation--Accused/father committed zina-bil-jabar with her real daughter--It is highly improbable that accused would have committed such a heinous offence with his own daughter in the presence of other children--There was nothing on record that accused was a man of ill repute who could got to such event nor commission of zina with his own daughter--Held: Medical evidence was prima facie in contradiction with the version of the victim and so far result of chemical examiner has not been received--Victim had even refused to meet her real mother in Darul Aaman and she was preferring to live with grandmother and maternal aunt, who were allegedly instrumental to involve the accused in such case to save the skin of their son--Possibility of leveling such an allegation cannot be ruled out as in such a teenage a girl with little education can very easily be tutored by her relatives--Case against the accused was of further inquiry who was behind the bars for the last more than six months and his further detention would not serve any useful purpose to the prosecution--Bail was admitted. [P. 1060] A, B & C

Mr. Farrukh Ahmad Khan, Advocate for Petitioner.

Rana Muhammad Nazir Khan Saeed, Advocate for Complainant.

Mr. Nadir Manzoor Duggal, DPG for State.

Date of hearing: 20.1.2009.

Order

Through this petition under Section 497 Cr.P.C., Shabir Hussain petitioner seeks post arrest bail in case F.I.R. No. 263 dated 24.6.2008 registered under Section 376 PPC at Police Station Dera Rahim District Sahiwal on the application of Mst. Shabella Bibi with the allegation that about 15/20 days earlier, when she was alone in the house, the petitioner who is real father of Mst. Shabella Bibi committed zina-bil-jabar with her.

3.  Learned counsel for the petitioner submits that the petitioner has been involved in this case falsely on account of enmity with grand-mother and real aunt of the victim because one Naveed who is son of aunt of victim had developed illicit relations with her and the petitioner being father could not tolerate this who gave beating to the victim; that to save the skin of said Javed a false story has been concocted to eliminate the petitioner from the way; that the petitioner is a father of seven children including the victim and it is highly improbable story that he could have committed such a sinful act with his own daughter in the presence of other children; that the mother of the victim and wife of the petitioner is also present in the Court, who has vehemently denied commission of this occurrence and supported that actually on account of intimacy between the victim and Javed to save their skin this case has been got registered by one Haji Shaukat, who hails from Lahore and is an influential person.

4.  Learned DPG assisted by the learned counsel for the complainant submits that the victim is a minor, who has no motive to falsely involve the petitioner in this case and being real daughter of the petitioner she cannot think to depose against him falsely; that the offence falls within the prohibitory clause of Section 497 Cr.P.C. and the petitioner having committed a very heinous offence is not entitled to the concession of bail.

5.  After hearing the learned counsel for the parties and perusal of the record it is admitted that the petitioner has seven children including the alleged victim and they all were residing in the house with their mother and the petitioner. It is highly improbable that the petitioner would have committed such a heinous offence with his own daughter in the presence of other children. For the time being there is nothing on the record that the petitioner was a man of ill repute who could go to such even nor commission of zina with his own daughter. Keeping in view the nature of the allegation the learned DPG was asked to scrutinize the police file minutely and assist this Court properly who submits that for the time being there is solitary statement of the victim and her real mother has refuted the said allegation. It is found that the medical evidence is prima facie in contradiction with the version of the victim and so far result of the Chemical Examiner has not been received. Keeping in view the facts and circumstances explained by the mother of the petitioner coupled with the factum that the victim had even refused to meet her real mother in Daruf Aaman and she is preferring to live with the grandmother and the maternal aunt, who are allegedly instrumental to involve the petitioner in this case to save the skin of their son Javed, the possibility of leveling such an allegation cannot be ruled out as in such a a teen age a girl with little education can very easily be tutored by her relatives. As such the case against the petitioner is of further inquiry who is behind the bars for the last more than six months and his further detention will not serve any useful purpose to the prosecution. Hence this petition is accepted and the petitioner is admitted to bail subject to his furnishing bail bonds in the sum of

Rs. 1,00,000/- with one surety in the like amount to the satisfaction of the learned trial Court.

6.  The alleged victim who was sent to Darul Aaman Multan has been produced in Court, who will be handed over to her real mother present in Court as she is the natural guardian. At this stage learned counsel for the complainant submits that there is apprehension that the victim will be murdered. The mother of the petitioner submits that no mal-treatment will be given to her. Asghar Ali S.I present in Court is directed to provide all protections to the alleged victim and ensure that she will not be mal-treated in future.

7.  The DPO Sahiwal is directed to hold an inquiry into the allegations through any officer not below the rank of DSP other than the SDPO of the area, who after joining all the concerned in the said enquiry will bring on record the true facts and report thereof will be submitted to this Court through the Deputy Registrar (Judicial) of this Bench.

(R.A.)      Bail admitted.