FAYYAZ HUSSAIN vs STATE and another
This matter concerns a petition for post-arrest bail filed by the petitioner, Fayyaz Hussain, who was accused of rape in a case registered under Section 376(i) of the Pakistan Penal Code 1860. The core legal question was whether the petitioner was entitled to bail pending trial given the evidentiary gaps in the prosecution's case. The Court held that the petitioner was entitled to post-arrest bail, noting several critical factors: an unexplained thirty-two-hour delay in lodging the FIR, the finding of innocence regarding a co-accused during investigation, the absence of violence marks on the victim's private parts during medical examination, and the lack of any recovery from the petitioner. Furthermore, the medical opinion remained inconclusive pending a report from the Punjab Forensic Science Agency. The Court determined that the case required further inquiry within the meaning of Section 497(2) of the Code of Criminal Procedure 1898. Consequently, the Court exercised its discretion to grant bail, establishing the principle that where prosecution evidence is weak or inconclusive, continued detention of a first-time offender is unjustifiable.
- Does an unexplained delay in lodging an FIR constitute a ground for granting post-arrest bail?
- Can the finding of innocence of a co-accused during investigation impact the case against the remaining accused for the purpose of bail?
- Is a petitioner entitled to bail when the medical evidence is inconclusive and pending further forensic reports?
- Section 376(i), Pakistan Penal Code 1860
- Section 497(2), Code of Criminal Procedure 1898
ORDER
Fayyaz Hussain, petitioner has sought post arrest bail in case registered vide FIR No. 31 dated 20.1.2017 under Section 376(i), PPC registered at Police Station Chowk Azam, District Layyah.
2. Allegedly, the petitioner committed rape with Mst. Sofia, the victim.
3. After hearing the learned counsel for the parties and perusing the record, it was noticed that there was unexplained delay of about thirty two hours in lodging the FIR. The co-accused of the petitioner, namely, Muhammad Saleem was found innocent during the investigation which reflects against the prosecution story. No mark of violence on the private parts was observed during the medical examination of the victim. A Photostat copy of the affidavit of the complainant and Fazal Abbas is available on the record which reflects that nomination of co-accused of the petitioner, namely, Muhammad Saleem in this case was a result of sheer misunderstanding and thus, his involvement in this occurrence was not confirmed and he was found innocent. During the investigation nothing has been recovered from the petitioner. The opinion of the Medical Officer is subject to the report of Punjab Forensic Science Agency which is still awaited. The petitioner is behind the bars since his arrest and his continuous detention in the circumstances would be unfair.
Ref: "Mustafa v. State & another" (PLJ 2012 Cr.C. (Lahore) 787) and "Shah Nawaz v. The State" (2016 P.Cr.R 211). The petitioner has got no previous record, and thus, would be believed as first offender.
The case of the petitioner needs thorough probe in the circumstances, within the meaning of Section 497(2), Cr,P.C, thus, I am inclined to exercise my discretion in his favour.
4. For what has been discussed above, the application is accepted and the petitioner is admitted to post arrest bail subject to his furnishing bail bonds in the sum of Rs. 1,00,000/- with one surety in the like amount to the satisfaction of the learned trial Court/Duty Judge.