WAQAS vs STATE and another
This matter concerns a post-arrest bail application filed by the petitioner, who is accused of abduction and Zina-bil-Jabr under Sections 365-B, 496-A, 376-A, and 109 of the Pakistan Penal Code 1860. The core legal question was whether the petitioner was entitled to bail given the inconsistencies in the prosecution's case, specifically the 23-day delay in lodging the FIR, the victim's refusal to undergo a medical examination, and the significant delay in the victim's statement alleging Zina. The Court held that the prosecution's case suffered from material inconsistencies, particularly the absence of corroborative medical evidence and the victim's shifting stance regarding the allegation of Zina. Consequently, the Court determined that the petitioner's case fell within the ambit of 'further inquiry' under Section 497(2) of the Code of Criminal Procedure 1898. The key principle laid down is that where the prosecution's case lacks corroboration and the victim's statements are inconsistent or delayed, the accused is entitled to the benefit of further inquiry and, thus, post-arrest bail.
- Does a significant delay in lodging an FIR and subsequent inconsistent statements by the victim entitle an accused to post-arrest bail?
- Is a case considered one of 'further inquiry' under Section 497(2) of the Code of Criminal Procedure 1898 when there is no medical evidence to corroborate an allegation of Zina?
- Can bail be granted when the victim refuses to undergo a medical examination in a case involving allegations of sexual assault?
- Section 365-B, Pakistan Penal Code 1860
- Section 496-A, Pakistan Penal Code 1860
- Section 376-A, Pakistan Penal Code 1860
- Section 109, Pakistan Penal Code 1860
- Section 161, Code of Criminal Procedure 1898
- Section 497, Code of Criminal Procedure 1898
ORDER
Waqas petitioner seeks bail after arrest in case FIR No,357 of 2008 dated 04.09.2008 under Sections 365-B. 496-A, 376-A and 109 PPC registered at Police Station City Rajanpui.
2. Precise allegation against the petitioner is that he along with his co-accused deceitfully took Mst.
Salma and Asma Batool from their homes and then on gunpoint abducted them and committed Zina-bilJabr with Mst. Asma Batool:
3. Learned counsel for the petitioner contends that FIR has been got lodged with inordinate delay of 23-days without any plausible explanation therefor; that Mst. Asma Batool refused to have her medically examined which implies that she was not subjected to zina and for that reason hesitated her medical examination; that in her first statement recorded under Section 161. Cr.P.C. on 06.09.2008 she did not accuse any person for zina with her and she for the first time made above allegation in her statement under the above provision of law made on 22.10.2008 with a gap of more than 11/2 months, which cannot be safely relied upon; that Mst. Asma Batool was undisputedly not recovered from the custody of petitioner. Further contends that version recorded in the FIR and above two statements is inconsistent; that entire family of the petitioner i,e, maternal grandfather, maternal uncle, father, mother and brother of the petitioner have been involved in this case which is enough to infer that prosecution version is not honest and fair as above relatives cannot be expected to become privy to the nature of offence as alleged in this case; that petitioner was arrested on 30.01.2009 and after investigation has been sent to judicial lock up and that petitioner's case is that of further inquiry.
4. On the other hand, learned DDPP assisted by learned counsel for the complainant has opposed this application, It is contended that petitioner is named in the FIR and specific role has been assigned to him; that in her statement dated 22.10.2008 Asma Batool has specifically alleged zina with her by petitioner; that it is a case of gang-rape and thus petitioner is not entitled to the favourable exercise of discretion; that the offence falls within the prohibitory clause of Section 497(1) Cr.P.C. and that he was found guilty during investigation.
5. Heard learned counsel for the parties and examined the record.
6.There is a delay of 23-days in lodging of FIR. In her first statement recorded on 06.09.2008 under Section 161 Cr.P.C. the victim did not make any allegation of zina with her by the petitioner. This allegation has surfaced for the first time in her statement recorded on 22.10.2008 with a gap of more than 11/2 months of her first statement and, therefore, possibility of false allegations against the petitioner cannot be ruled out especially when she refused to have her medically examined.
Mst. Asma Batool has not been recovered from the custody of the petitioner. In view of the fact that there is no corroborative medical evidence of zina with the alleged abductee who has been changing her stance on different occasions, case against the petitioner is that of further inquiry falling within the ambit of sub-section (2) of Section 497 Cr.P.C. Therefore, this application is allowed and the petitioner is admitted to bail after arrest subject to his furnishing bail bond in the sum of Rs, 1,00,000/- (rupees one hundred thousand only) with one surety in the like amount to the satisfaction of learned trial Court.