Bilal Ahmad Vs The State

PESHAWAR HIGH ART ABBOTTABAD

BENCH

JUDICIAL DEPARTMENT

JADGMENT SHEET

Cr. M (Bail) No. 1196-A/2021.

Date of hearing 02.12.2021.

Petitioner/s (Bilal Ahmed) by Mr. Muhammad Ishaq Battagrami, Atlvocate.

Respondent/s (The State) by Raja Muhammad Zubair, AAG and nemo for complainant,

MOHAMMAD IBRAHIM KHAN, J.

Petitioner through the instant petition seek his post-arrest bail in case FIR No. 789 dated: 10.11.202 I under sections 376 PPC read with section 53 of Child Protection Act and section 3 of TiP registered at Police Station, Sara-e-Saleh, District, Haripur, as the same relief was, declined to him by the leamed lower forum.

2.I have given my anxious thought to the blue streak arguments of learned counsel for the petitioner, learned AAG and gone through the record with their able assistance.

3.Complainant absent todaY, who was present on previous date submitted an

affidavit stating therein, that the accused/petitioner was nominated/charged due to mis-conception

4.Aithough, the accused/petitioner is directly charged in the present FIR by the complainant for committing rape with his minor daughter, which is a heinous crime, however, the medical report available on file negates the version of complainant, which reads as under:-

Descripli on of Iniuries:-

No resistant mark on body.

No bruise/rashes/redness on body. No secretions/redness/tear noted on examination of genitation.

It is pertinent to note here that at the end of said repon, the medical officer opined for gynecologist advise, however, learned AAG submitted that the complainant has refused to conduct examination of her minor daughter from gynecologist.

L

5.So far as applicability ofsection 53 of the Khyber Pakhtunkhwa Child Protection and Welfare Act, 2010 (hereinafter to be referred as the Act of 2010), is concemed, it depicts that this law

was specially introduced/enacted and promulgated in the Khyber Pakhtunkhwa with particular purposes i.e. to provide for the care, protection, maintenance, welfare, training, education, rehabilitation and reintegration of'children at risV rn the Khyber Pakhtunkhwa. For the sake of convenience and ready reference, the preamble of the Act of 20 I 0, is reproduced below:-

"WHEREAS, it is expedient to provide Jbr the care, prolection, mqinlenonrc. welfare. training. education, rehabilitation and reintegrotion of children at risk in the Khyb er P akhtunkhw a ".

"Child al risk" has been defined under section 2(1)(e) of the Act in the.folIowing words:-

"Child at risk" means a child in need of protection, who

(i)is at risk, including an orphan, child v,ith disqhilities, child of migrant workers, child working and or living on the street, child in conflict with the law and child living in extreme poverty.

(i, is .found begging; or

(iii)is found v)ithout having anY home or settled place of abode or ,/, rrithout any oslensible meaning of subsistence: or

(iv)has a parenl or guardian who i; unfit or in(upLtcildtcd to excrcis( control over the child: or

(v)lives in a brothel or with a prostitule or frequently visits any place being used Jbr the PurPose of prostitution or is found to associate

with any prostitute or dny other person who leads an immoral or depraved life; or

(vi)is being or is likely to be abused or exploited./br immoral or illegal purposes or gain; or

(vii)is beyond the parental control: or

(viii)is imprisoned with the mother or born in jail;

(ix)has lost his parents or one oJ' the parents and has no adequale source of income; or

(*) is victim of an offence punishable under this Act or any other law Jbr the time being in force and his parent or guardian is convicted or accused /br the commission of such offence; Or

(xi)is leJi abandoned by his pqrent or porents as the case may be, which will include a child born out ofwedlock and le.ft abandoned by his parenl,'

6.Keeping the preamble of the Act in juxtaposition with the definition of the " Child at risk" as contemplated under section 2(1)(e) of the Act coupled with the facts and circumstances of the instant case, it could not be ascertained as to whether the alleged victim, falls under the /, definition of "Child at risk" or otherwise' In such an eventuality, the applicability of sections 53 ofthe Act of2010, to the case of petitioner is yet a begging question. Wisdom can be derived from case law

repofied in 2016 SCMR 1523 20t4 MLD 190 & 2018 YLR Note 114.

7 . At the moment, there is no incriminating evidence available on record to show any nexus of the accused/petitioner with the commission of rape with minor daughter of complainant, at least at this stage.

8.Moreover, in the instant case, no compliance with the provision of Section i64-8 Cr.P.C has been made because no samples for DNA test have been obtained either from the accused/petitioner or victim despite the fact that the word "shall" 1S used in the said provision, making its appl icabil ity mandatory.

9.Investigation in the case is complete and accused/petitioner is no I more required to the prosecution for the very pu{pose. Even otherwise, in view of the above stated facts, the case calls for furlher inquiry under Sub-Section (2) of Section 497 Cr.P.C, therefore, further

retention of the petitioner in jail will serve no useful purpose.

10.Apart from the above, it has been held time and again by the august Supreme Court that bail does not mean acquittal of accused but only change of custody from Government agencies to the sureties, who on furnishing bonds take responsibility to produce the accused whenever and wherever required to be produced. Reliance could be placed on case reported in 2008 SCMR 807 "Haii Muhummatl Nazir Vs State".

1 1. So, by cutting the cackle, on tentative assessment of material available on file, a case for the grant of bail is made out. Consequently, this bail application is allowed and accused/petitioner is admitted to bail provided he furnishes bail /. bonds in the sum of Rs. 200,000/- (two lakh) with two sureties, each in the like amount to the satisfaction of Illaqa/Duty Judicial Magistrate, concerned, who shall ensure that the sureties are local, reliable and men of means.

12.Before parting with this order, this court finds it necessary to mention that all the observations recorded above are tentative assessment just for the disposal of bail petition and not intended to influence the mind of trial Court, which is free to appraise the evidence strictly in accordance with law and merits of the case.

Anno unced. I ,y'-

JUDGE