FAHAD AZIZ vs STATE
This matter arose from a post-arrest bail application filed by the petitioner, who was accused of abducting and committing zina-bil-jabar with the victim under Sections 365-B, 371-A, and 371-B of the Pakistan Penal Code 1860. The core legal question was whether the petitioner was entitled to post-arrest bail on the grounds of an unexplained delay in lodging the FIR, lack of nomination in the FIR, and material contradictions in the victim's statements. The Lahore High Court held that the petitioner was entitled to bail. The Court observed that the FIR was delayed by 28 days without explanation, the petitioner was not nominated in the FIR, and the victim's statements under Sections 161 and 164 of the Code of Criminal Procedure 1898, as well as before the Court, were highly divergent and lacked independent corroboration. The Court laid down the principle that where the sole testimony of a victim is riddled with material contradictions, lacks independent corroboration, and is accompanied by an unexplained delay in lodging the FIR, the case falls within the ambit of further inquiry, entitling the accused to bail.
- Whether an unexplained delay of 28 days in lodging an FIR, coupled with the non-nomination of the accused, makes a case fit for further inquiry under bail provisions?
- Can post-arrest bail be granted if the victim's statements under Section 161 and Section 164 of the Code of Criminal Procedure 1898 are materially divergent and lack independent corroboration?
- Does the absence of corroborative medical and ocular evidence in a rape allegation entitle the accused to the concession of bail on the ground of further inquiry?
- Section 365-B, Pakistan Penal Code 1860
- Section 371-A, Pakistan Penal Code 1860
- Section 371-B, Pakistan Penal Code 1860
- Section 161, Code of Criminal Procedure 1898
- Section 164, Code of Criminal Procedure 1898
ORDER
Fahad Aziz petitioner seeks post arrest bail in case FIR No, 551 dated 8.5.2007, registered under sections 365-B/371-A/371-B PPC at Police Station City Jaranwala District Faisalabad.
2. Precise allegations against the petitioner are that he alongwith his accomplices abducted Mst.
Nargis and committed zina-bil-jabar with her.
3. Learned counsel for the petitioner submits that the instant FIR was got lodged after a delay of 28 days in which the petitioner was not nominated and no role was ascribed to the petitioner. He further submits that the statements of Mst. Nargis Bibi, the alleged abductee before the police under Section 161 Cr.P.C. and before the Magistrate under Section 164 Cr.P.C. are at variance. He also submits that the medical of the victim was conducted after six months of the occurrence and there is no direct evidence against the petitioner except the statement of the alleged abductee, as such, the case against the petitioner is that of further inquiry into his guilt. He relied upon the case of Naveed Masih v. The State (2008 YLR 1062) and Sajjad alias Sakkoo v. The State (2007 YLR 9).
4. Learned counsel for the complainant as well as the learned APG for the State while opposing the bail, application submit that the petitioner committed zina-bil-jabar with the alleged abductee as per her statement and there was no reason for the alleged abductee to falsely implicate the petitioner in the case.
5. I have heard the learned counsel for the parties and have also perused the record. In order to know the factual position, Mst. Nargis Bibi, the victim was summoned by this Court who appeared today and stated that the petitioner committed zina-bil-jabr with her but the fact remains that her statement does not find independent corroboration from the statement of any other witness. She narrated different story before the police under Section 161 Cr.P.C. and it was altogether different version before the Magistrate under Section 164 Cr.P.C. and here in this Court as well, as such, no reliance could be placed on her statement, as such, divergent statements of victim reacted on her veracity. The medical report also reveals that her hymen was torn with old healed tears and vagina admitting two fingers easily, as such, the victim appears to be woman of easy virtue, indulged in sexual activities and her sole statement cannot be relied upon in absence of strong corroboration.
The FIR was delayed by 28 days without any explanation for such delay coupled with the fact that the petitioner was not nominated in the FIR. Keeping in view all the above mentioned facts, I find that the case against the petitioner is that of further inquiry into his guilt.
6. For what has been discussed above, I admit the petitioner to bail subject to his furnishing bail bonds in the sum of Rs, 50,000/- with two sureties in the like amount each to the satisfaction of the trial Court.