Muhammad Sarfraz vs The State And Another
This matter concerns a petition for post-arrest bail filed by an accused charged under Sections 365-B and 376 of the Pakistan Penal Code 1860, following allegations of abduction and zina-bil-jabr. The core legal question was whether the petitioner was entitled to bail given the evidentiary status of the prosecution's case. The Lahore High Court held that the petitioner was entitled to post-arrest bail. The court reasoned that the prosecution's case was weakened by the absence of a medico-legal examination of the alleged victim, which would have provided substantial support for the rape allegation. Furthermore, the court found that the petitioner had produced prima facie evidence, including a nikahnama, an affidavit from the alleged victim, and other supporting documents, which contradicted the prosecution's narrative of abduction. Consequently, the court determined that the case against the petitioner fell within the scope of further inquiry. The key principle laid down is that where the prosecution lacks physical evidence, such as a medico-legal report, and the defense presents credible prima facie documentation challenging the allegations, the case warrants further inquiry, justifying the grant of bail.
- Does the absence of a medico-legal examination in a rape case constitute grounds for further inquiry regarding bail?
- Can a nikahnama and affidavit presented by the defense create a case of further inquiry in an abduction and rape case?
- Is the prosecution's failure to provide physical evidence sufficient to warrant the grant of post-arrest bail?
- Section 365-B, Pakistan Penal Code 1860
- Section 376, Pakistan Penal Code 1860
ORDER
ZUBDA-TUL-HUSSAIN, J. -In a case under Sections 356-B and 376, P.P.C., registered vide F.I.R. No. 359/08, at Police Station, Saddar, Khanpur, the allegation against the petitioner is that he enticed away the daughter of the complainant and committed 'zina-bil-jabr' with her.
2. Seeking post-arrest bail, the learned counsel for the petitioner has argued that this is a case of no evidence as the alleged victim refused to get her medically examined and as such the allegation of rape cannot be established at least at the present stage. As to the offence under Section 365-B, P.P.C. He relied upon a copy of 'nikahnama' as well as the affidavit allegedly sworn by the alleged victim in May, 2008.
3. The learned D.P.G. Maintained that the medico-legal report is not the sole evidence to prove the allegation of rape and so far as the 'nikahnama' and affidavit are concerned these are the forged documents. He, therefore, the bail petition.
4. The allegation of abduction of daughter of the petitioner is based upon the information indirectly received by him from the P.Ws. Mentioned in the F.I.R. As against it the 'nakahnama' prima facie shows, the solemnization of the marriage of the daughter of the complainant after she had embraced Islam. This is further corroborated by the affidavit apparently sworn by the alleged victim wherein she supported the cause of the petitioner. The certificate issued by one Qari Hafiz Mufti Maulana Haji Moeen of Karachi and the agreement between the victim and the petitioner also prima facie lend support to the case of the petitioner.
5. It is pertinently noted that the-victim has not got herself medically examined which examination could provide substantial support to the allegation of the rape levelled by the prosecution against the petitioner. All the above factors mainly the 'nikahnama', the affidavit and other above- mentioned documents coupled with non-availability of any physical evidence of commission of rape makes it a case of further enquiry against the petitioner. He is, therefore, admitted to post arrest bail subject to his furnishing bail bonds in the sum of Rs. 50,000/- with one surety in the like amount to the satisfaction of the learned Trial Court.