GHULAM ABBAS vs ABDUL GHAFOOR and another
This petition was filed by the complainant seeking the cancellation of post-arrest bail granted to respondent No. 1 by the Additional Sessions Judge, Chiniot, in a case registered under section 376 of the Pakistan Penal Code 1860 for allegedly committing rape against a twelve-year-old minor girl. The core legal question before the court was whether sufficient grounds existed to recall and cancel the bail granted to the accused. The Lahore High Court held that the accused was specifically named in the F.I.R., the heinous charge of rape was fully supported by the medico-legal report showing a freshly torn hymen and bleeding, the medical report confirmed the accused was fit to commit sexual intercourse despite the amputation of one leg, and minor discrepancies in the prosecution evidence could not be weighed at the bail stage. The court laid down the principle that tentative assessment of the record showing prima facie involvement in a heinous offence warrants the cancellation of bail when the lower court's order is not sustainable in law.
- Whether bail once granted can be cancelled when the accused is prima facie connected to a heinous offence supported by medical evidence?
- Can minor discrepancies in statements recorded under section 161 of the Code of Criminal Procedure 1898 be considered at the bail stage?
- Does physical disability such as an amputated leg automatically disprove the capability of committing an offence of sexual assault for the purpose of bail?
- Section 376, Pakistan Penal Code 1860
- Section 161, Code of Criminal Procedure 1898
ORDER
' MALIK SHAHZAD AHMAD KHAN, J.---This petition has been filed for cancellation of bail after arrest granted to Abdul Ghafoor (respondent No,1), by the learned Additional Sessions Judge, Chiniot, in case F.I.R. No,106, dated 2-4-2011, registered under section, 376 of P.P.C., with Police Station, Langrana, District Chiniot, on the complaint of the petitioner-complainant namely Ghulam Abbas.
2. As per brief allegations levelled in the. F.I.R., 4/5 days prior to the registration of the F.I.R. (2-4- 2011), respondent No,1 namely Abdul Ghafoor committed rape with Mst. Erum Bibi, aged about 12 years (minor daughter of the petitioner-complainant).
3. The petitioner, after his arrest, moved his bail petition before the learned Additional Sessions Judge, Chiniot, who accepted the same vide impugned order dated 15-6-2011, hence, this petition before this Court.
4. It is contended by the learned counsel for the petitioner-complainant that respondent No,1 has committed a heinous offence; that he has committed rape with 12 years old minor daughter of the petitioner; that the allegations levelled by the petitioner against respondent No,1 are fully supported by the medico-legal report of the victim Mst. Erum Bibi; that respondent No,1 could not establish any mala fide on the part of the .Petitioner-complainant for his false involvement in the instant case, therefore, this petition may be accepted and the .Ing order dated 15-6-2011, passed by the learned Additional Sessions Judge, Chiniot, may be recalled and withdrawn.
5. On the other hand, this petition has strongly been opposed by the learned counsel for respondent No,1 on the grounds that bleeding from the vaginal area of the alleged victim is not possible after 4/5 days of the occurrence according to the Medical Jurisprudence; that there are discrepancies/ contradictions in the statements of prosecution witnesses recorded under section 161 of Cr.P.C., because it is mentioned by the complainant in the F.I.R. That the victim came back home at her own, whereas, the prosecution witnesses have stated that co-accused Shaukat has brought the victim to the house of the complainant; that respondent. No,1 was implicated in this case due to political rivalry; that bail after arrest was granted by a competent Court of jurisdiction, therefore, very strong and exceptional grounds are required for cancellation of the same; that respondent No,1 is a disabled person and his one leg has already been amputated, therefore, he cannot commit the alleged offence.
6. The learned Deputy Prosecutor-General, for the State has also supported the arguments of the petitioner and prayed for cancellation of bail.
7. Arguments heard and record perused.
8. Respondent No,1 is named in the F.I.R. The allegation of a. Very heinous offence i.e, rape with a 12 years old girl, has been levelled against him. The said allegation is fully supported by the Medics-- legal Report of the victim according to Which hymen was freshly torn and blood was coming out of vagina at the time of examination. Respondent No,1 could not establish any mala fide on the part of the complainant for his false involvement in the instant case. The medical report of respondent No,1 shows that he was fit to commit sexual intercourse, therefore, the amputation of one leg does not mean that the allegations against him are baseless. The minor discrepancies in the prosecution evidence cannot be discussed at bail stage. The victim Mst. Erum Bibi has also levelled the allegation of rape against respondent No,1 in her statement recorded under section 161 of Cr.P.C.
9. In view of all the above circumstances, it manifests that the ing order is not sustainable in the eyes of law, therefore, this petition is accepted and the impugned order dated 15-6-2011, passed by the learned Additional Sessions Judge, Chiniot, whereby, respondent No-.1 was granted bail after arrest; is hereby recalled and ed to him stands cancelled.
10. It is, however, clarified that the observations made in this order are tentative in nature and shall cause no prejudice to the case of either party at the time of decision of other issues involved in the present case or at the time of final adjudication of the case before the learned trial Court.
' Bail cancellation allowed.