TAHIR alias BILOO and another vs THE STATE and another
The petitioners, Tahir alias Biloo and Umair, sought post-arrest bail in a case registered under Section 376 of the Pakistan Penal Code 1860 at Police Station Basti Malook, District Multan. The core legal question was whether the petitioners were entitled to post-arrest bail in view of the medical evidence, the delayed supplementary statement, and the circumstances of the case. The Lahore High Court accepted the petition and admitted both petitioners to post-arrest bail, holding that their case called for further inquiry into their guilt under subsection (2) of Section 497 of the Code of Criminal Procedure 1898. The key principle laid down is that where the medico-legal report is negative for signs of violence and corroborative chemical examination yields negative results, and where an accused is implicated belatedly through a supplementary statement, the case falls within the purview of further inquiry, warranting the grant of bail.
- Whether an accused is entitled to post-arrest bail when the medico-legal and chemical examiner reports do not support the charge of rape?
- What is the evidentiary value of a supplementary statement recorded fourteen days after the alleged incident for the purpose of bail?
- When does a criminal case fall within the scope of further inquiry under Section 497(2) of the Code of Criminal Procedure 1898?
- Section 376, Pakistan Penal Code 1860
- Section 497(2), Code of Criminal Procedure 1898
ORDER
' CH. IFTIKHAR HUSSAIN, J.---Petitioners Tahir alias Biloo and Umair through the instant petition have sought for post arrest bail in case F.I.R. No,365 registered under section 376, P.P.C. With Police Station Basti Malook, District Multan on 30-7-2009.
2. Briefly the prosecution case as per the F.I.R. Is that on 28-7-2009 at about 10-00 p.m., Mst.
Tehmina Bibi, 15/16 years old, the daughter of the complainant was passing with the godown of Mushtaq fruit merchant. Tahir alias Biloo and an unknown person forcibly caught her and dragged her to that godown. The unknown person caught her and Tahir alias Biloo subjected her to zina-bil- jabr.
3. After hearing the learned counsel for the parties and perusing the record, I find that as regards petitioner Tahir alias Biloo, though there is an allegation of rape or zina-bil-jabr against him with the said girl but it has been argued on his behalf that he had met with an accident last year and so can neither run nor walk even and so, this allegation against him that he on the attraction of the witnesses fled away from the scene is absolutely based on no truth. The medico-legal report of the said girl annexed to this petition shows her to be a girl of easy virtue as according to the same, there was no marks of violence on her body and her vigina admitted two fingers easily and the hymen is torn old. Further according to the same, she at that time was menstruating for the last four days. Her such (medico-legal) report is as follows:--queela "A young girl well conscious and well oriented. Her Shilwar is blood stained (dirty blood) and w/o 4th day of menses. Her sec sex characters developed. A xillary and pubic hair present. Breast developed. Nipple and areola are pink in colour. There is no mark of injury on any part of body including private parts. On her viginium exam, valve and vigina healthy. Vigina admits two fingers easily. Hymen is old torn. Small amount of blood coming from cervice on (uterus). 6 viginal swabs taken and sent to Chemical Examiner Multan for semen detection and 3 viginal swabs of blood to come Laboratory Lahore for DNA detection. Opinion will be given after receiving reports."
The report of the Chemical Examiner is also negative.
4. As regards petitioner Umair, he is not named in the F.I.R. There is neither any allegation of Zina nor zina-bil-jabr against him. He has been named as an accused in the supplementary statement of the complainant and that of the prosecution witnesses namely Muhammad Farooq and Zulfiqar recorded about 14 days after the alleged incident. The evidentiary value of such supplementary statement is always open to serious question to be seen at trial.
5. Hence, their case requires further inquiry into their guilt and so the same is covered under subsection (2) of section 497, Cr.P.C.
6. They are behind the bars and stated to be previous non-convicts.
7. In these circumstances of the case. I accept this petition and admit them to bail subject to their furnishing bail bonds in the sum of Rs.100,000 (rupees one lac only) each with one surety each in the like amount to the satisfaction of the learned Sessions Judge, Multan/trial Court.
8. However, I may observe here that the above observations are tentative in nature and meant only for the disposal of the matter in hand. These shall have no bearing at all on anybody's case at trial.
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