AHMAD KHAN vs THE STATE
This matter arises from a post-arrest bail petition filed by the petitioner, Ahmad Khan, seeking release in case F.I.R. No. 457 dated 25-7-2006, registered under section 10 of the Offence of Zina (Enforcement of Hudood) Ordinance 1979 at Police Station Kot Momin. The core legal question concerns whether the petitioner made out a case for further inquiry under subsection (2) of section 497, Code of Criminal Procedure 1898, given a negative Chemical Examiner report and the investigating officer finding the accused innocent. The Lahore High Court allowed the bail petition, holding that the negative report regarding semen stains, the innocence opined by the investigating officer, and the need for trial court assessment brought the case within the purview of further inquiry. The key principle laid down is that where medical evidence corroboration is absent and the investigating agency finds the accused innocent, the accused is entitled to post-arrest bail pending trial.
- Does a negative report from the Chemical Examiner regarding semen stains make a case of Zina-bil-Jabr one of further inquiry for the purpose of post-arrest bail?
- Whether the opinion of an investigating officer declaring an accused innocent brings the case within the purview of subsection (2) of section 497, Code of Criminal Procedure 1898?
- Is an accused entitled to post-arrest bail when trial proceedings have not progressed and the medical evidence is inconclusive?
- Section 10, Offence of Zina (Enforcement of Hudood) Ordinance 1979
- Section 497, Code of Criminal Procedure 1898
ORDER
' FAZAL-E-MIRAN CHAUHAN, J.-Petitioner, Ahmad Khan, seeks postarrest bail, in case F.I.R. No.457, dated 25-7-2006, offence under section 10 of the Offence of Zina (Enforcement of Hudood)
Ordinance No.VII of 1979, registered at Police Station, Kot Momin, for the allegation of committing Zina-bil-Jabr with the complainant, hence, this case.
2. It is contended by the learned counsel that the petitioner is innocent and has been falsely roped in this case by the complainant with mala fide intention. In fact, the petitioner has some dispute with one Muhammad Aslam, who managed to involve the petitioner in this case falsely.
' The report of Chemical Examiner was received negative, which makes the case of the petitioner that of further inquiry. Further contends that during investigation, the owner of the house, where the occurrence was alleged to have taken place, sworn their affidavits stating therein that no such occurrence had taken place in the house, which casts serious doubt on the prosecution case, therefore, the petitioner deserves the concession of bail.
3. On the contrary learned State counsel has opposed the bail petition.
4. Having heard learned counsel for the parties and perused the record, it transpires from the contents of the F.I.R. That the petitioner went to the house of Malook Shah along with Zafar Iqbal for recovery of Rs.30,000, from the wife of Malook Shah. Since, said person was not present at his house, then, one Liaqat, known to Ahmad Khan-petitioner took the complainant to the house of the petitioner, where they stayed for a night and during that night, the petitioner committed Zinabil- Jabr with the complainant on pistol point.
5. The complainant was medically examined , by the Doctor and samples (swabs) were sent to the' office of Chemical Examiner but as per report dated 24-8-2006, the samples were not found to be stained with semens. Besides this report, no other medical report is available on the file. It is stated by the Investigating Officer that the complainant refused to get herself medially examined by the Lady Doctor. Only samples were taken from the vagina. The petitioner is incarceration since his arrest, challan has been submitted in the Court but no progress has taken. Place. Even otherwise, the petitioner was not found to be guilty of the commission of crime, alleged against him by the Investigating Officer, who, declared him, to be innocent, which makes the case of the petitioner within the purview of subsection (2) of section 497, Cr.P.C. It is yet to be determined whether the complainant went to the house of the petitioner and she was subjected to Zina-bil-Jabr by the petitioner, that can only be considered by the learned trial Court after recording of evidence regarding guilt or innocence.. Of the petitioner.
6. For the foregoing reasons, this bail petition is allowed and the petitioner is admitted. To post- arrest bail subject to his furnishing bail bonds in the sum of Rs.50,000 (rupees fifty thousand only) with one surety in the like amount, to the satisfaction of the learned trial Court.