ATTA MUHAMMAD vs STATE
This matter arises from a petition for post-arrest bail filed by Atta Muhammad in connection with FIR No. 143 dated 30.9.2005, registered under Section 18/10 of the Offence of Zina (Enforcement of Hudood) Ordinance 1979 at Police Station Fateh Shah, Tehsil Burewala, District Vehari, on allegations of attempting to commit Zina-bil-jabr. The core legal question is whether the petitioner is entitled to post-arrest bail considering the nature of the allegations, the lack of medical examination, and whether the offense falls within the prohibitory clause of Section 497(1) of the Code of Criminal Procedure 1898. The Lahore High Court accepted the bail petition and held that since neither the petitioner nor the complainant was medically examined and it remains to be determined whether the acts constitute an attempt to commit rape or an offense under Section 354 of the Pakistan Penal Code 1860, the case falls within the scope of further inquiry under Section 497(2) of the Code of Criminal Procedure 1898. The key principle laid down is that the absence of medical evidence and uncertainty regarding the precise legal categorization of the offense at the pre-trial stage can warrant the grant of post-arrest bail on the basis of further inquiry.
- Whether the removal of a complainant's shalwar constitutes an attempt to commit rape or an offense under Section 354 of the Pakistan Penal Code 1860?
- Does the absence of a medical examination of the victim and the accused make out a case of further inquiry for the grant of post-arrest bail?
- Is an accused entitled to post-arrest bail when the alleged offense does not fall within the prohibitory clause of Section 497(1) of the Code of Criminal Procedure 1898?
- Section 18/10, Offence of Zina (Enforcement of Hudood) Ordinance 1979
- Section 497(1), Code of Criminal Procedure 1898
- Section 354, Pakistan Penal Code 1860
- Section 497(2), Code of Criminal Procedure 1898
ORDER
Petitioner Atta Muhammad, seeks post arrest bail in case FIR No. 143, dated 30.9.2005, offence under Section 18/10 of the Offence of Zina (Enforcement of Hudood) Ordinance No. VII of 1979, registered at Police Station, Fateh Shah, Tehsil Burewala, District Vehari for the allegations of attempting to commit Zina-bil-jabr with Razia Bibi-complainant, hence, this case.
2. It is contended by learned counsel for the petitioner that the petitioner is quite innocent and has been falsely roped in this case by the complainant with malafide intention. There is nothing on record connecting the petitioner with the offence alleged against him. There is unexplained delay of two days in lodging the F.I.R., which has not been explained properly and casts serious aspersion of the prosecution story. Further contends that no marks of scuffle between the complainant and the petitioner were found. No medical report is on the file showing marks of violence on her body, which also speaks a volume of malafide and ulterior motive against the petitioner. The so-called Shalwar, which was alleged to be untied by the petitioner, was not produced before the police, which further makes the petitioner's case one of further inquiry. Also contends that the offence alleged to have been committed by the petitioners does not fall within he prohibitory clause of Section 497 (1) Cr.P.C. In this regard, reliance is laced on Muhammad Bashir vs. The State [1996 P.Cr.L.J. 813 Lahore], unsaf Khan vs. The State [NLR 1993 SD 126], Muhammad Asif alias uhammad Ilyas vs. The State [2004 SD 1174] and Tahir Abbas alias Babar di vs. The State [2001 M LD 1559 Lahore], therefore, petitioner deserves the oncession of bail.
3.Conversely, learned counsel for the complainant assisted by earned State counsel vehemently opposed the bail application contending That the petitioner is specifically nominated in the F.I.R. with specific role of ttempting to commit Zina-bil-jabr with the complainant. The offence is heinous in nature, therefore, petitioner is not entitled for the concession of ail.
4. Having heard the learned counsel for the parties and perused the ecord, it manifest that the only allegation against the petitioner is that on the day of occurrence, the petitioner pushed the complainant into cotton crop and removed her Shalwar in order to commit sexual intercourse against her wishes. On raising her hue and cry, witnesses arrived at the spot and she as saved from being dishonoured. It is yet to be determined whether removal of complainant's Shalwar by the petitioner amounts to attempting to commit rape or the same falls for outraging the modesty of a girl punishable under Section 354 P.P.C. The petitioner is behind the bars since his arrest. Neither the petitioner nor the complainant (victim) was medically examined by the police, which makes the petitioner's case that of further inquiry.
5. For the foregoing reasons, this bail petition is accepted and the petitioner is admitted to bail subject to 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.