Mohammad Akbar vs Rukhsana Bibi

2013 P Cr. L J 730

[Peshawar]

Before Qaiser Rashid Khan, J

MUHAMMAD AKBAR---Petitioner

Versus

Mst. RUKHSANA BIBI and another---Respondents

Criminal Miscellaneous Bail Petition No.271 of 2012, decided on 21st November, 2012.

Criminal Procedure Code (V of 1898)---

----S. 497(2)---Penal Code (XLV of 1860), Ss. 376 & 338-A---Rape and Isqat-i-Haml---Bail, grant of---Further inquiry---Accused was arrested on the allegation that he had committed rape with victim girl who got Isqat-i-Haml (abortion)---Validity---Victim or any of her relative did not lodge any complaint to local police in respect of such cruelty perpetrated upon a young girl--- Information in respect of abortion would have gone unreported if complainant had not interrogated the victim---All such facts taken in juxtaposition made the case of accused one of further inquiry entitling him to concession of bail---Bail was allowed in circumstances.

Muhammad Karim Anjum Qasuria for Petitioner.

Khan Wali Khan Mahsud, Additional A.-G. for the State.

Muhammad Ismail Alizai for the Complainant.

Date of hearing: 21st November, 2012.

JUDGMENT

QAISER RASHID KHAN, J.---Having been refused the concession of bail to the petitioner namely Muhammad Akbar son of Maula Dad by the court of learned Judicial Magistrate-I, D.I. Khan and learned ASJ-V, D.I. Khan vide orders 19-10-2012 and 31-10-2012 respectively in case F.I.R. No.138 dated 20-9-2012 registered under sections 376/338-A, P.P.C. at P.S. Chaudhwan, D.I. Khan, he has filed the instant petition for the grant of same relief.

2.Succinct facts of the prosecution case are that Inspector/SHO Muhammad Yousaf Khan received spy information to the effect that in village Bhukki an unmarried girl namely Mst. Rukhsana has caused abortion with the connivance of her relatives two days ago at which he proceeded to the spot and called the said girl. She told him that the accused/petitioner Akbar enticed her and committed Zina-bil-jabr with her due to which she got pregnant which was aborted by her two days ago from an unknown doctor. The said girl was arrested under section 54, Cr.P.C. and her medical examination was conducted in Zanana Hospital, D.I. Khan. The said report was entered in daily Diary No.9 dated 2-9-2012, inquiry under section 156(3), Cr.P.C. was conducted and later on, F.I.R. ibid was registered.

3.Learned counsel for the petitioner argued that there is neither any evidence worth the name to connect the accused/petitioner for the commission of the alleged offence nor he had any hand in the abortion carried out by the victim namely, Mst. Rukhsana; that the contradictory statements under section 161, Cr.P.C. were recorded on behalf of Mst. Rukhsana and also two different site plans were prepared thereby casting doubts on the prosecution version; that Mst. Rukhsana has also been made as an accused in the case; that there is no independent witness to connect the accused/petitioner with the commission of the offence; that the case of the accused/petitioner requires further probe into the matter and thus he is entitled to the concession of bail.

4.The learned counsel for the respondent No. 1, namely Mst. Rukhsana vehemently opposed the bail petition and argued that the accused/petitioner has been directly and specifically charged in the F.I.R.; that the accused/petitioner has forcibly committed Zina-bil-jabr with a girl of tender age due to which she got pregnant and finally aborted the same; that the medical report fully supports the version of the victim; that the offence is heinous in nature the punishment of which falls within the prohibitory clause of section 497, Cr.P.C. and the accused/petitioner is not entitled to the concession of bail.

5.The learned A.A.-G. on his turn candidly stated that the matter is prima facie one of further inquiry.

6.Arguments heard and record perused.

7.As per record, it was on the receipt of spy information by Muhammad Yousaf Khan Inspector/SHO P.S. Chaudhwan that in village Bhukki an unmarried girl namely Mst. Rukhsana had aborted her pregnancy with the active connivance of her relatives at which he proceeded to the house of Shah Jehan at village Bhukki and called Mst. Rukhsana who on preliminary interrogation told him that she being of tender age was enticed by the accused/petitioner who is married and committed Zina with her with which she got pregnant and the same was aborted by

her two days earlier. The medical report confirms her pregnancy and subsequent abortion. However, there are two site plans available on file. The site plan dated 14-10-2012 prepared at the pointation of Mst. Rukhsana shows that the alleged occurrence took place at the house of the accused/petitioner wherein even Mst. Khatoon Bibi wife of the accused/ petitioner has also been assigned point '3A'. The same per se casts doubt on the version of Mst. Rukhsana as in our own social and cultural milieu it does not appeal to mind that a person would commit such an abominable act in his house and in the presence of his wife. Another feature of the instant case is that Mst. Rukhsana or for that matter any of her relative did not lodge any complaint to the local police in respect of such cruelty perpetrated upon a young girl. But for the receipt of the spy information in respect of the abortion carried out by Mst. Rukhsana and the rushing of the complainant to the spot to interrogate her, the matter would have gone unreported at the victim's end. All these factors taken in juxtaposition make the case of the accused/petitioner one of further inquiry entitling him to the concession of bail.

8.For the reasons mentioned above, this petition is accepted and the accused/petitioner Muhammad Akbar is admitted to bail on furnishing bail bonds in the sum of Rs.1,00,000 (Rupees one lac) with two sureties each in the like amount to the satisfaction of Illaqa/Duty Judicial Magistrate.

9.Any observations made in the order being tentative in nature should in no way prejudice the proceedings before the learned trial Court.

MH/54/P Bail allowed.