DILAWAR vs The STATE and another
This is a criminal petition filed by the petitioner Dilawar seeking post-arrest bail in case FIR No.893/2018 registered under sections 365-B and 376 of the Pakistan Penal Code 1860 at Police Station Factory Area, District Faisalabad. The core legal question revolves around whether the petitioner is entitled to post-arrest bail given the specific allegations of abduction and rape, supported by medical evidence, notwithstanding the delay in medical examination and differing circumstances from a co-accused who was previously granted bail. The Lahore High Court held that the petitioner is directly nominated in the FIR with a specific role of abduction and committing rape, which is prima facie supported by the medical evidence showing an old torn hymen, and that the case is distinguishable from the co-accused. The court laid down the principle that penetration alone is sufficient to constitute rape under Section 375 of the Pakistan Penal Code 1860, and that a petitioner cannot claim bail on the principle of consistency when their role is distinguishable from a co-accused. Consequently, the petition for post-arrest bail was dismissed.
- Whether penetration alone is sufficient to constitute the offence of rape under Section 375 of the Pakistan Penal Code 1860?
- Can an accused claim post-arrest bail on the principle of consistency when their role is distinguishable from a co-accused who was granted bail?
- Does the absence of semen in a delayed medical examination negate the prima facie commission of rape when penetration is established by medical evidence?
- Section 365-B, Pakistan Penal Code 1860
- Section 376, Pakistan Penal Code 1860
- Section 375, Pakistan Penal Code 1860
ORDER
MALIK SHAHZAD AHMAD KHAN, J. Through the instant petition, the petitioner Dilawar seeks post arrest bail in case FIR No.893/2018, dated 28.11.2018, offences under sections 365-B/376, P.P.C., registered at police station Factory Area, District Faisalabad.
2. Arguments heard. Record perused.
3. As per brief allegations levelled in the FIR, on 21.11.2018, at about 6.00 p.m, the daughter of the complainant namely Mst. Zohara Bibi, was coming back towards her house but she was abducted at gun point by the petitioner and his co-accused, who took her to an unknown place, where the petitioner and Shahzaib co-accused committed rape with her turn by turn. On 26.11.2018, Mst. Saima Bibi co-accused took Mst. Zohara Bibi alleged victim to her house, where the alleged victim namely Mst. Zohara Bibi raised hue and cry, upon which the people of the Mohallah attracted towards the spot and rescued Mst. Zohara Bibi, hence the abovementioned FIR.
4. The petitioner is named in the FIR with the specific role that he along with his co-accused abducted Mst. Zohara Bibi and took her to an unknown placed, where he and Shahzaib co-accused committed rape with her turn by turn.
The allegation levelled against the petitioner is prima facie supported by the medical evidence, according to which the hymen of the alleged victim was old torn. It is noteworthy that Mst. Zohara Bibi was abducted on 21.11.2018 and her medical examination was conducted on 01.12.2018. Although as per report of the Punjab Forensic Science Agency , Lahore, no semens were detected on the swabs taken from the vaginal area of the victim and after going through the said report, the Medical Officer has opined that no fresh intercourse has taken place in this case but it is noteworthy that Mst. Zohara Bibi was abducted on 21.11.2018 and she was released from the custody of the accused on 26.11.2018, whereas her medical examination was conducted on 01.12.2018, therefore, non-presence of semens on the swabs taken from her vaginal area was quite natural. Moreover , under section 375, P.P.C., only penetration is sufficient to constitute the offence of rape. The penetration in this case is established from the medico legal report of Mst. Zohara Bibi alleged victim, according to which her hymen was old torn. The petitioner has been found guilty during the course of investigation. The petitioner is unable to establish any mala fide on the part of the prosecution for his false involvement in this case. It is true that the co-accused of the petitioner namely Iftikhar alias Babloo has been granted post arrest bail by this Court vide order dated 07.02.2018, passed in Crl.
Misc. No.1314-B of 2019 but no allegation of rape was levelled against the abovementioned co-accused and as such case of the petitioner is distinguishable from the case of the above mentioned co-accused, therefore, the petitioner cannot claim the relief of bail on the principle of consistency .
5. Keeping in view all the aforementioned facts, there is no substance in the present petition, hence the same is hereby dismissed.
Cited by 1 case
- Aziz-Ur-Rehman alias Babul vs The State 2022 PCRLJ 828