BASHARAT ALI vs THE STATE
This matter comes before the Lahore High Court through a petition filed by Basharat Ali seeking post-arrest bail in case F.I.R. No. 165 dated 25-4-2008 registered under sections 376, 511, 337-A(ii), 337-L(ii), and 34 of the Pakistan Penal Code 1860 at Police Station Bara Ghar, District Nankana, on allegations of attempting to commit Zina and causing injuries. The core legal question is whether the petitioner is entitled to post-arrest bail given the debatable nature of the accusations, the lack of incriminating material regarding the major offense, and the unexplained medico-legal report of the petitioner. The court held that the case calls for further inquiry under Section 497(2) of the Code of Criminal Procedure 1898, as the manner of occurrence is doubtful and the petitioner has been incarcerated since 25-4-2008 without any useful purpose being served by further detention. The court laid down the principle that where the applicability of a penal provision like Section 376 is debatable and the prosecution fails to explain the injuries sustained by the accused during the occurrence, the case falls within the scope of further inquiry warranting the grant of bail.
- Whether a petitioner is entitled to post-arrest bail when the applicability of the primary penal provision is debatable?
- Does the failure of the investigating officer to explain the injuries sustained by the accused make the case one of further inquiry?
- Whether continued incarceration serves any useful purpose when the investigation is complete and the accused is no longer required?
- Section 376, Pakistan Penal Code 1860
- Section 511, Pakistan Penal Code 1860
- Section 337-A(ii), Pakistan Penal Code 1860
- Section 337-L(ii), Pakistan Penal Code 1860
- Section 34, Pakistan Penal Code 1860
ORDER
' MUHAMMAD ASHRAF BHATTI, J.--- Basharat Ali, petitioner has sought post-arrest bail in case F.I.R.
No,165, dated 25-4-2008 under sections 376/511/337-A(ii)/337-L(ii)/34, P.P.C., registered at Police Station Bara Ghar, District. Nankana.
2. It has been resisted by the learned Deputy Prosecutor-General.
3. The prosecution case in brief is that petitioner by entering in the house of complainant attempted to commit Zina with her sister Mst. Razia Bibi during night time and also injured him.
4. Arguments heard and record perused.
5. Prima facie the very perusal of the contents of the F.I.R. Makes the case of the petitioner one of further inquiry. According to the complainant, the petitioner along with his co-accused, after having made forcible entry into his house, and while trying to outrage her modesty, caused grievous injuries upon the person of her sister, namely, Mst. Razia Bibi whereas his co-accused, namely, Malik Ali alias Maliko had been raising "Lalkaras" near her cot when the complainant was sleeping at the roof top of his house. Firstly, in the absence of any other incriminating material on record to prove an overt act on his part to commit rape with the said sister of the complainant, it may be highly doubtful that the petitioner would have caused multiple injuries of the nature upon her person nor it is plausible to comprehend that an attempt to commit the offence of Zina would have been made in the presence of co-accused raising "Lalkaras", in a way inviting attention of other members of the family to intervene. It is also very interesting to note that a police official also got examined the accused/petitioner by the doctor who too allegedly suffered injuries during the occurrence. In this regard copy of medico-legal report is available on record but the Investigating Officer, in attendance, has been unable to explain as to why he did not take notice of the petitioner's MLR and got probed the matter in the light thereof for a just conclusion of the case.
6. So, therefore, the total sum of the given facts and circumstances of the case leads to the tentative assessm ent that the occurrence must not have been taken place in the manner as suggested in the F.I.R. Under reference. Above all the petitioner is behind the bar since 25-4-2008 and is no more required for investigation purpose. His further detention for indefinite period would therefore, not serve any useful purpose. Further as to the attraction of offence under section 376, P.P.C. There is no sound incriminating material available on record to prima facie establish that the petitioner had indeed made an attempt to commit Zina. So, when the attraction of the said offence is also debatable the petitioner's case, by all means, falls within the ambit of further inquiry.
7. So, therefore, I accept this petition and the petitioner is admitted to bail subject to furnishing bail bond in the sum of Rs,1,00,000 with one surety in the like amount to the satisfaction of the trial Court.
Cited by 2 cases
- MUZAFFAR vs The STATE 2019 YLR 719
- ABDUL QADOOS alias PEHLWAN vs THE STATE 2011 YLR 1921