EJAZ HUSSAIN vs STATE and another
This criminal petition concerns a request for post-arrest bail by the petitioner, who was charged under Sections 376 and 511 of the Pakistan Penal Code 1860 for an alleged attempted rape of a minor girl. The core legal question was whether the petitioner, a juvenile, was entitled to bail given the circumstances of the case, the delay in lodging the FIR, and the evidentiary value of the prosecution's allegations. The Court held that the petitioner was entitled to bail. The ratio of the decision rests on several factors: the four-day unexplained delay in lodging the FIR, which raised a presumption of false implication; the absence of violence marks on the victim; the implausibility of the alleged attempt occurring within the petitioner's home in the presence of family members; and the fact that the investigation was complete, rendering further detention unnecessary. The Court emphasized that keeping the petitioner incarcerated pending trial, when the prosecution's narrative appeared questionable and the petitioner was a juvenile, would result in irreparable harm if the charges were ultimately unproven.
- Does an unexplained delay of four days in lodging an FIR create a presumption of false implication?
- Is a petitioner entitled to post-arrest bail when the investigation is complete and the accused is no longer required for further recovery?
- Can the implausibility of the prosecution's narrative regarding the location of an alleged offense serve as a ground for granting bail?
- Section 376, Pakistan Penal Code 1860
- Section 511, Pakistan Penal Code 1860
- Section 497, Code of Criminal Procedure 1898
ORDER
Through this petition the petitioner seeks post arrest bail in case FIR No, 2/10 dated 5.1.2010 got registered under Sections 376, 511 PPC with police station Kot Chutta District D.G. Khan.
2. Brief facts giving rise to the instant bail petition are that said FIR was lodged on the complaint of Muhammad Ramzan wherein the complainant alleged that on 1.1.2010 at 8.00 p.m. he along with his brother was present in the house. His daughter Mst. Ghazala aged 12/13 years went to give meal to her grandmother but she did not return back. He went out and heard hue and cry of victim Mst Ghazala. Petitioner accused attempted to commit rape with Mst. Ghazala. When they raised lalkara the accused-petitioner after pushing them back managed to flee away from the scene of occurrence.
3. The pre-arrest bail petition of the petitioner was dismissed by the learned Additional Sessions Judge, D.G. Khan on 20.1.2010 and the post arrest bail of the petitioner was dismissed on 29.1.2010 by the learned Additional Sessions Judge, D.G. Khan.
4. Learned counsel for the petitioner contended that there is unexplained delay of four days in lodging the FIR which give rise to presumption of his false implication; Learned counsel for the petitioner submits that the girl fell in love with petitioner who is 17/18 years of age; the parents of the petitioner went to the house of the father of the girl for her hand for his son; the girl reached the house of the petitioner where four real brothers of the petitioner and other family members are residing and it is not believable that in the presence of so many family members at home the petitioner made attempt to commit zina with her; that the story of the prosecution is unbelievable.
Learned counsel further submitted that no mark of violence was found on the body of alleged victim. The petitioner is a juvenile. He has produced the school leaving certificate, according to which, the petitioner is more than 15 years of age; that the challan of the case is submitted before the trial Court; that the petitioner is no more required for any other probe recovery or investigation.
5. Conversely learned D.P.G. opposed this bail petition by contending that the age of the girl is 12/13 years; the petitioner has tried to commit heinous offence which fall within the prohibitory clause of Section 497 Cr.P.C; petitioner is not entitled to the concession of bail, he is originated in the FIR.
6. I have heard the learned counsel for the petitioner and learned DPG for the State and also perused the record.
7. According to school leaving certificate the petitioner is below 18 years of age; no mark of violence is found on the body of the alleged victim Mst. Ghazala; in the presence of other family members such attempt on the part of petitioner for commission of zina with the girl in the home of the petitioner is not believable. If such occurrence has been narrated out-side the house somewhere that story could be believed; that the investigation of the case has been completed; the petitioner is no more required for further recovery; that there is unexplained delay of 4 days in lodging the FIR; the presumption arises of false implication after such a long delay in lodging the FIR; challan of the case has been submitted before the learned trial Court and if after recording of evidence charge is not proved against the petitioner there will be no reparation or compensation for keeping the petitioner behind the bars.
8. In the light of above discussion this petition is allowed the petitioner is admitted to bail subject to his furnishing bail bonds in the sum of Rs, 100,000/-with one surety in the like amount to the satisfaction of the learned trial Court.