ABDUL MAALIK vs STATE, etc.
This criminal petition concerns a request for post-arrest bail by the petitioner, Abdul Maalik, who was charged under Section 376 of the Pakistan Penal Code 1860 regarding an alleged incident of zina-bil-jabar. The core legal question was whether the petitioner was entitled to bail given the significant discrepancies in the prosecution's case, specifically the five-day delay in filing the F.I.R., the initial allegation of only an attempt to commit the offense, and the victim's subsequent change of version after twenty-seven days. The Court observed that the medical examination conducted twenty-seven days post-occurrence revealed no injuries, and there was a lack of forensic evidence, such as serological or DNA reports, to substantiate the later allegation of rape. Holding that these circumstances rendered the case one of further inquiry, the Court accepted the petition and admitted the petitioner to bail. The key principle laid down is that unexplained delays in reporting, coupled with material contradictions in the complainant's statements and a lack of corroborative medical or forensic evidence, entitle an accused to the benefit of further inquiry at the bail stage.
- Does a significant delay in the registration of an F.I.R. coupled with a later change in the victim's version of events warrant the grant of bail?
- Is an accused entitled to bail when the medical examination conducted long after the alleged incident shows no signs of violence or injury?
- Does the absence of forensic evidence, such as DNA or serological reports, in a case of alleged rape constitute grounds for further inquiry at the bail stage?
- Section 376, Pakistan Penal Code 1860
- Section 511, Pakistan Penal Code 1860
ORDER
Through this petition, Abdul Maalik, petitioner has sought post-arrest bail in case F.I.R. No, 248 dated 17.8.2011 registered under Section 376 (i)/511 P.P.C (later on, Section 511 P.P.C. was deleted) at Police Station, Bait Mir Hazar, District Muzafargarh.
2. In F.I.R. it was stated that victim/complainant namely Mst. Mumtaz Mai was working in sugarcane crop when the petitioner came and tried to commit zina-bil-jabar with her and due to presence of her father and brother the petitioner ran away from the spot.
Later on, victim made a statement in which she has changed the version and stated that the petitioner committed zina-bil-jabar with her. She was medically examined on 08.9.2011.
3. Learned counsel for the petitioner contends that the occurrence statedly took place on 12.8.2011 at 3:00 p.m. and matter was reported to the police on 17.8.2011 but in F.I.R. it was stated that only attempt was made by the petitioner and later on victim made another statement after twenty seven days i,e, on 06.9.2011 implicating the petitioner in the offence of zina-bil-jabar; that she was medically examined on 08.9.2011 and doctor observed no injury on-her person; that at the time of occurrence-statedly father and brother of the complainant were present and F.I.R. was registered after unexplained delay of five days and even then there is no allegation of rape and at belated stage this allegation has been leveled so case of the petitioner remains that of further inquiry and as such the petitioner is entitled to bail.
4. On the other hand, learned law officer submits that victim is a young girl of twenty years of age and she was subjected to assault; that the police was in league with the petitioner and as such her proper statement was not recorded but later on 6.9.2011 the victim filed an application before Ex- Officio Justice of Peace and by the order of Court her statement was recorded on 15.10.2011 and as such the petitioner is not entitled to any exception at this stage.
5. I have heard the arguments of learned counsel for the parties and have also gone through the record. F.I.R. was 'registered after unexplained delay of five days and in F.I.R. it was not mentioned that rape was committed by the petitioner and only allegation was that of attempt. Victim was medically examined after twenty seven days and no mark of violence was observed by the doctor.
There is no report in respect of serologist or regarding comparison of D.N.A. So keeping in view that the complainant/victim has changed her version after twenty seven days and such circumstance makes the case of the petitioner that of further inquiry, this petition is accepted and the petitioner is admitted to bail subject to his furnishing bail bonds in the sum of Rs, 1,00,000/-with two sureties each in the like amount to the satisfaction of learned trial Court.