Dr. NAZIR AHMAD vs THE STATE
This petition for post-arrest bail arose from a criminal case registered under Section 10 of the Offence of Zina (Enforcement of Hudood) Ordinance No. VII of 1979, wherein the petitioner, a medical doctor, was accused of raping a sixteen-year-old patient at his clinic. The core legal question was whether the petitioner was entitled to bail under Section 497 of the Code of Criminal Procedure 1898, given the evidentiary material presented. The Court held that the case against the petitioner warranted further inquiry, thereby entitling him to bail. The decision was based on several factors: the negative report from the Chemical Examiner regarding the presence of semen, the existence of affidavits from other patients present at the clinic denying the occurrence, and the plausible defense that the complainant had a motive to falsely implicate the petitioner due to a prior dispute over the sale of spurious drugs. The Court established that where the prosecution's narrative is inherently improbable and contradicted by objective forensic evidence, the case falls within the scope of further inquiry, justifying the grant of post-arrest bail.
- Does a negative report from the Chemical Examiner in a rape case constitute grounds for further inquiry under Section 497(2) of the Code of Criminal Procedure 1898?
- Can the presence of affidavits from independent witnesses contradicting the prosecution's version of events justify the grant of bail?
- Is a case considered one of further inquiry when the prosecution's narrative appears inherently improbable given the circumstances of the alleged offence?
- Section 10, Offence of Zina (Enforcement of Hudood) Ordinance No. VII of 1979
- Section 497, Code of Criminal Procedure 1898
- Section 497(2), Code of Criminal Procedure 1898
ORDER
' M. BILAL KHAN, J.---Dr. Nazir Ahmad son of Wall Muhammad, the petitioner, by filing the instant petition seeks post-arrest bail in case F.I.R. No.695, dated 31-8-2005, registered at Police Station, Factory Area, Lahore for an offence under section 10 of the Offence of Zina (Enforcement of Hudood) Ordinance No. VII of 1979.
2. The case of the prosecution as is unfolded in the F.I.R. Registered at the instance of Waris Ali son of Bashir Ahmad, caste Rehmani, resident of Qadri Colony, Lahore was that on 31-8-2005, about 7- 30 p.m., he along with his wife Mst. Somaira Bibi and paternal niece Mst. Uzma Bibi, aged about sixteen years, went to the clinic of Dr. Nazir (the petitioner) situated in Mian Park Walton, Lahore to fetch medicine for his aforesaid niece, who had some stomach problem; the petitioner took her inside the clinic for check-up by asking them to stay outside; after about fifteen minutes, on hearing hue and cry of Mst. Uzma Bibi, he along with his wife went inside and saw that the petitioner was busy in committing rape with her forcibly; he and his wife raised alarm and then he attempted to extricate her niece from the clutches of the petitioner; Ghulam Rasool son of Bashir Ahmad, Mukhtar Ahmad son of Khushi Muhammad and Arif son of Bashir Ahmad were also attracted to the spot and rescued Mst. Uzma from the petitioner. Resultantly, the instant F.I.R. Had been recorded.
3. After his arrest, the petitioner applied for his post-arrest bail, which had been turned down by the learned Additional Sessions Judge, Lahore, vide order dated 18-10-2005. Hence, the instant petition.
4. I have heard the learned counsel for both the sides at considerable length and have also gone through the record brought by the Muhammad Nawaz, A.S.-I.
5. According to the F.I.R. The allegation against the petitioner was that he had subjected Mst. Uzma Bibi, aged about sixteen years, to forcible sexual assault at his cliniC, where she was brought to have her examined for some stomach problem, when certain other patients were also available there. It prima facie does not seem probable that at evening time, when besides the complainant and his wife, some other patients were also present at the clinic, a doctor (the petitioner) could act in the manner as alleged in the F.I.R. It has been observed that a number of patients, who were present in the clinic waiting for their turn, had sworn affidavits stating therein that no such occurrence had ever taken place. The report of the Chemical Examiner, to whom vaginal swabs taken during the examination by the Medical Officer and Shalwar of the prosecutrix had been sent for chemical analysis, was in the negative and no semen had been detected. Two out of the three alleged eye-witnesses happen to be real brothers of the complainant. I would not like to further dwell in detail on the merits of the case, lest it prejudices the case of either of the sides. Suffice it to say that the manner in which the incident is alleged to have taken place calls for further probe. The petitioner, who is aged about 56/57 years, a qualified M.B.,B.S. Doctor and a married man, is not expected to act in the manner as alleged and that too in the presence of the complainant and his wife as well as a large number of patients waiting for their turn. The learned counsel for the complainant has not been able to substantiate his claim that the petitioner has a past history of involvement in such-like activities. Likewise it has been admitted by the learned counsel for the complainant that the complainant runs a medical store right across the petitioner's clinic and as such the assertion of the petitioner that he had reprimanded the complainant for selling spurious drugs, which had angered the complainant prompting him to implicate the petitioner in a false case, cannot be summarily brushed aside. In this background, the story of the prosecution will have to be taken with a fistful of salt. In view of the facts and circumstances surrounding the incident especially the affidavits of some of the patients, who were statedly present at the clinic of the petitioner, regarding falsehood of the allegation and the negative report of Chemical Examiner, the case of the petitioner is rendered one of the further inquiry within the meaning of subsection
(2) of section 497, Cr.P.C.
6. Resultantly, this petition is allowed and the petitioner is admitted to bail subject to his furnishing bail bonds in the sum of Rs.1,00,000 (rupees one lac) with one surety in the like amount to the satisfaction of the learned trial Court.
7. Before parting with this order, I would like to add that the observations made hereinabove are tentative in nature and are not designed to influence the course of the trial.