Haji MUHAMMAD ASLAM vs STATE
This matter concerns a petition for post-arrest bail filed by the petitioner, who was accused of committing sodomy against the complainant's son. The core legal question was whether the petitioner was entitled to bail given the circumstances of the case, specifically the delay in lodging the FIR and the timing of the medical examination. The Court held that the petitioner was entitled to bail, determining that the three-day delay in reporting the incident, the lack of explanation for this delay, and the fact that the victim was examined three days after the alleged occurrence rendered the prosecution's case one of further inquiry. Furthermore, the Court noted the petitioner's prolonged incarceration of over five months without trial and raised doubts regarding the applicability of the specific offense charged under the Offence of Zina (Enforcement of Hudood) Ordinance, 1979. Consequently, the Court allowed the petition and granted bail, establishing the principle that unexplained delays in reporting and medical examination, combined with prolonged pre-trial detention, constitute sufficient grounds for a case of further inquiry warranting the grant of bail.
- Does a three-day delay in lodging an FIR and conducting a medical examination constitute a case of further inquiry for the purpose of bail?
- Can prolonged incarceration without trial be a ground for granting post-arrest bail?
- Section 12, Offence of Zina (Enforcement of Hudood) Ordinance 1979
- Section 377, Pakistan Penal Code 1860
1. ORDER.
2. On 15.6.2004 at 8.30 p.m. Abdul Rehman complainant laid information at P.S. New Multan, District Multan, that Muhammad Aslam is his friend who used to visit Multan frequently and then somehow he kept his residence with him. On the night between 12/13-6-2004 Muhammad Aslam was asleep with him. At about 3.00 a.m. he heard his son carrying. He alongwith his brother Abdul Sattar went to the drawing room and found the petitioner sodomizing his son. On their hue and cry, Muhammad Aslam ran away. A case under Section 12 of the Offence of Zina (Enforcement of Hudood) Ordinance, 1979 read with Section 377 PPC was registered vide FIR No, 437. The petitioner was arrested on 12.7.2004. His bail application has been dismissed by a learned ASJ, Multan, on 18.9.2004.
3. 2.Learned counsel for the petitioner contends that the sole reliance has been placed by the learned ASJ on the report of the Chemical Examiner which is highly doubtful as admittedly the alleged victim was examined three days after the alleged occurrence. He also states that the case has been got registered mala fide as there was some money dispute between the petitioner and the complainant. Learned counsel for the State opposes the bail application.
4. 3.I have gone through the available records. I find that there is a delay of three days in the lodging of the first report. There is no explanation. There is no denial that the victim was examined three days after the alleged occurrence. Besides, the petitioner stands incarcerated since the last more than five months without a trial. To my mind in the said circumstances, it is certainly a case of further inquiry. Besides, in the circumstances narrated in the FIR, it will also have to be seen as to whether a case under Section 12 of the said Ordinance is made out. The Cr. Misc. is accordingly allowed and the petitioner is granted bail subject to his furnishing of bail bonds in the sum of Rs,