FAISAL ALI vs STATE and another
This matter comes before the Lahore High Court through a petition filed under Section 497 of the Code of Criminal Procedure 1898, wherein the petitioner Faisal Ali seeks post-arrest bail in FIR No. 227 of 2015 registered at Police Station Saddar Pindi Bhattian, District Hafizabad, for offences initially including Section 365-B of the Pakistan Penal Code 1860 and subsequently added Section 376-I of the Pakistan Penal Code 1860. The core legal question revolves around whether the petitioner is entitled to post-arrest bail in view of the delayed FIR, material contradictions in the victim's statements recorded under Sections 161 and 164 of the Code of Criminal Procedure 1898, the deletion of Section 365-B of the Pakistan Penal Code 1860, and the medical evidence. The court held that the inordinate delay in lodging the FIR, inconsistencies between the FIR and statements under Sections 161 and 164, the deletion of the primary charge, and inconclusive medical evidence bring the case within the scope of further inquiry under Section 497(2) of the Code of Criminal Procedure 1898. Consequently, the petition was accepted and bail granted.
- Whether delay in lodging the FIR creates a doubt regarding the prosecution case making the accused eligible for post-arrest bail?
- Does a contradiction between the statements recorded under Section 161 and Section 164 of the Code of Criminal Procedure 1898 bring the case within the ambit of further inquiry?
- Is an accused entitled to post-arrest bail as a matter of right when the case falls under the purview of further inquiry?
- Section 497, Code of Criminal Procedure 1898
- Section 365-B, Pakistan Penal Code 1860
- Section 376-I, Pakistan Penal Code 1860
- Section 161, Code of Criminal Procedure 1898
- Section 164, Code of Criminal Procedure 1898
ORDER
' Through this petition filed under Section 497, Cr.P.C. The petitioner Faisal A.I seeks post arrest bail in FIR No. 227/2015 dated 17.6.2015 for offence under Section 365-B, PPC later on added Section 376-I, PPC registered at Police Station Saddar Pindi Bhattian, District Hafizabad.
2. Arguments have been heard and the record perused.
3. It is observed that the FIR has been lodged with an inordinate delay for which no plausible explanation is forthcoming. The offence is stated to have taken place on 14.06.2015 at 8:00 P.M.
However the FIR was lodged with a delay on 17.06.2015. According to the FIR the victim left her house alongwith her mother to answer a call of nature where she was abducted by the petitioner alongwith the co-accused Safdar and Allah Ditta. The alleged abductee while getting her statement recorded under Section 161, Cr.P.C. Did not depose in line with the contents of the FIR and stated that she had been abducted only by the petitioner and Safdar and not by the other co- accused Allah Ditta. The alleged abductee while getting her statement recorded under Section 164, Cr.P.C. Again changed her stance by submitting that one of the accused pointed a gun at her father while abducting her from her home. According to the statements recorded by the victim under Sections 161 and 164, Cr.P.C. The abduction took place from the house of the complainant and not from outside the house where the victim had allegedly gone to answer a call of nature as has been alleged in the FIR. The Medico Legal Report of the victim does not lend credence to the prosecution case according to which the hymen is "ruptured/old". In all fairness the learned Deputy District Public Prosecutor has pointed out that Section 365-B, PPC has been deleted as is evident from a bare reading of Case Diary No. 7, dated 2.7.2015. All these factors would bring the case of the petitioner within the ambit of further inquiry calling into his guilt making him eligible for the grant of bail as of right and not by way of grace or concession as has been held by the august Supreme Court of Pakistan in Ehsan Ullah versus The State (2012 SCM R 1137). There is nothing on the record to establish that the petitioner has any criminal antecedents.
4. For what has been stated above this petition is accepted and the petitioner is admitted to post- arrest bail subject to his furnishing bail bonds in the sum of Rs. 2,00,000/- (rupees two hundred thousand only) with two sureties in the like amount to the satisfaction of the learned trial Court.