KHUSHDIL KHAN vs WAKIL KHAN and others
This is a criminal petition for post-arrest bail arising from F.I.R. No. 132 dated 19-4-2007 registered under sections 376, 452, 506, and 34 of the Pakistan Penal Code at Police Station Urmar, Peshawar. The core legal question is whether the accused is entitled to bail when he is directly charged in the F.I.R., but the medical evidence is negative and there is a lack of corroborative independent evidence, making his case one of further inquiry. The Peshawar High Court held that since the medical report showed negative swabs and no seminal stains, and no independent witnesses or immediate hue and cry were established, the case called for further inquiry under section 497(2) of the Code of Criminal Procedure. The court laid down the principle that where medical evidence fails to support the direct allegations in a rape case and corroboration is lacking, the accused makes out a case for further inquiry and is entitled to post-arrest bail.
- Whether an accused directly charged in an F.I.R. for rape is entitled to bail when the medical evidence is completely negative?
- Does the absence of independent witnesses and lack of hue and cry at the crime scene make out a case for further inquiry under Section 497(2) of the Code of Criminal Procedure?
- Can statements recorded under Section 161 of the Code of Criminal Procedure serve as sufficient corroboration to deny bail when medical reports do not support the prosecution?
- Section 376, Pakistan Penal Code 1860
- Section 452, Pakistan Penal Code 1860
- Section 506, Pakistan Penal Code 1860
- Section 34, Pakistan Penal Code 1860
- Section 161, Code of Criminal Procedure 1898
- Section 497, Code of Criminal Procedure 1898
1. ' TALAAT QAYYUM QURESHI, J.---Having been involved in a case registered vide F.I.R. No, 132, dated 19-4-2007 under sections 376/452/506/34, P.P.0 at Police Station Urmar in District Peshawar, the accused-petitioner applied for his release on bail in the Court of learned Judicial Magistrate-WI, Peshawar but his application was dismissed vide order dated 25-7-2007.
2. ' Thereafter, the accused-petitioner moved the Court of learned Additional Sessions Judge-WI, Peshawar but his application met the same fate as it was dismissed vide order dated 4-9-2007.
3. Now he has moved this Court for his release on bail.
4. ' Mr. Javed A. Khan, Advocate, the learned counsel representing the accused-petitioner, argued that no doubt the petitioner has been directly charged in the F.I.R but there is no material available on record to connect him with the commission of offence.
5. ' It was argued that the medical evidence also does not support the prosecution case, in that, the opinion of the Demonstrator/Medical Officer, Department of Forensic Medicine, Khyber Medical College, Peshawar shows that the swabs taken were negative and no semen stains were detected on the shalwar.
6. ' It was argued that only one house has been shown in the site-plan prepared by the Investigating Officer and as per contents of the F.I.R, when the son of the alleged victim, namely, Ijaz aged about 18/19 years reached at the spot, the offence was being committed, but no hue and cry had been made to attract any witness from the locality. There is no independent witness to support the prosecution version.
7. ' On the other hand, Miss. Shabana Gul Tajak, Advocate, the learned counsel representing the State as well as Main Hikmatullah Jan, Advocate, for the complainant, vehemently opposed the grant of bail to petitioner. They argued that the petitioner has been directly charged in the promptly lodged F.I.R wherein specific role has been assigned to him.
8. ' It was argued that the ipse dixit of police as well as the medical report are ignored at this stage, the evidence available on record in the shape of statement of Ijaz recorded under section 161 Cr.P.C, which fully supports the case of the prosecution, can be taken into consideration. Reliance in this regard was placed on the following judgments:- ' SaifullahSindhu v. The State (2005 M LD 982), Ghulam Rasool v. The State (1977 PCr.LJ 322).
9. ' It was also argued that no respectable woman would lodge such a report to disgrace her honour in the entire family if the offence is not committed.
10. ' It was further argued that the accused-petitioner has remained absconder for about three (03) months and his co-accused, namely, Afsar is still absconder.
11. ' I have heard the learned counsel for the parties at the length and perused the record.
12. ' On 19-4-2007 at 220Q hours Mst. Jamsheda complainant along with her relative came to Police Station, Urmar and reported that her husband Wakil Khan has gone to Saudi Arabia for his livelihood some two (02) years ago, while she along with her kids is residing in her house. It was on the eventful day that her sons Khalid and Ejaz were not present in the house, in the meanwhile, the accused-petitioner along with co-accused Afsar Khan trespassed her house. The petitioner caught hold of her and took her inside a room, while co- accused by putting a pistol on her head, facilitated the petitioner to commit Zina-bil-Jabar with her, which he committed accordingly. Thereafter, the complainant's son Ejaz returned his home and when knocked at the door, they decamped from the spot by jumping from the wall.
13. ' No doubt the petitioner has been directly charged in the F.I.R by the complainant, but the perusal of the record shows that except the statement of Ijaz, there is no other independent witness to support the prosecution case. Even no hue and cry was either made by the complainant or by her son to attract the neighbours to the spot. The only corroborative piece of evidence in the case in hand could be the medical report of the victim/complainant but the report of the Demonstrator/Medical Officer, Department of Forensic Medicine, Khyber Medical College, Peshawar shows as under:-
(i) The swa bs are negative;
(ii) No seminal stain detected on the shalwar.
14. ' The above quoted report in no case supports the version of the prosecution.
15. ' In short, there is no sufficient material available on record at the moment to connect the accused-petitioner with the commission of offence as the case of the prosecution needs further inquiry and the same requires recording of further evidence during trial.
16. ' Consequently, I, accept application in hand and direct that accused-petitioner be released on provided he furnishes bail bond to the of Rs,2,00,000 (rupees two lacs only) with two sureties each in the like amount to the satisfaction of the concerned Judicial Magistrate who shall ensure that the sureties are local, reliable and men of means.