Bashir Ahmad Versus State
This criminal petition was filed before the Lahore High Court seeking post-arrest bail in a case registered under Section 376 of the Pakistan Penal Code 1860. The petitioner was accused of having sexual intercourse with the complainant's daughter under the false promise of marriage, resulting in her pregnancy and the birth of a child. The petitioner argued that the sexual intercourse was consensual, making the act fall under Section 496-B PPC (fornication), which is bailable, rather than rape under Section 375 PPC. The High Court dismissed the petition, holding that consent obtained through deception, fraud, or allurement based on a false promise of marriage does not constitute valid consent in the eyes of the law. The Court observed that the offence of rape under Section 375 PPC was fully attracted. Furthermore, the victim's statements recorded under Sections 161 and 164 of the Code of Criminal Procedure 1898, fully corroborated by a positive DNA report confirming the petitioner as the biological father, established a prima facie case against the accused.
- Whether consent to sexual intercourse obtained through a false promise of marriage constitutes valid consent under the law?
- Whether an act of sexual intercourse under a deceptive promise of marriage falls under Section 496-B of the Pakistan Penal Code 1860 or constitutes rape under Section 375 of the Pakistan Penal Code 1860?
- Whether a positive DNA report establishing paternity alongside the victim's statement suffices to establish a prima facie case disentitling an accused to post-arrest bail?
- Section 375, Pakistan Penal Code 1860
- Section 376, Pakistan Penal Code 1860
- Section 496-B, Pakistan Penal Code 1860
- Section 161, Code of Criminal Procedure 1898
- Section 164, Code of Criminal Procedure 1898
Order
Tanveer Ahmad Sheikh, J .--- The petitioner (Bashir Ahmad), being arrayed as an accused in case FIR No. 2047 of 2024, dated 14.09.2024 registered with Police Station Sabzi Mandi, District Gujranwala, for offence under Section 376 PPC, seeks his post arrest bail, after the same was refused by the court of learned Additional Sessions Judge, Gujranwala vide order dated 15.10.2024.
2. According to the story of incident, as narrated in the FIR, one Mst. Shaheen (17/18) daughter of Muzammil Hussain (complainant) was a divorcee and living with complainant. Complainant used to go out of the house in the morning for daily routine work and returned back in the evening. Mst. Maryam (15/16) another daughter of complainant was also living in the same house. One Bashir Ahmad son of Jamal made a promise of marriage with Shaheen and started to visit the house of complainant. He used to commit 'Zina' with Mst. Shaheen in the absence of complainant, which was also seen by Mst. Maryam, younger daughter of complainant. Mst. Shaheen was in the sixth/seventh month of pregnancy. When Bashir was asked to contract Nikah with Mst. Shaheen, he used to issue threats of dire consequences and filthy abuses.
3. Complainant, present before the Court, submitted that he cannot engage the services of learned counsel, hence, would rely upon the arguments of Deputy Prosecutor General/State counsel.
4. After hearing learned counsel for the petitioner, learned Deputy District Public Prosecutor and perusal of record it was observed by this Court that Bashir Ahmad (petitioner) allegedly used to commit "Zina" with Mst. Shaheen in the absence of complainant (father) and impregnated her.
5. Main thrust of learned counsel for the petitioner was mainly on the point that no time, date and detail of the occurrence was given in the FIR and there was no eye-witness to the occurrence, and even if allegations levelled in the FIR are taken as gospel truth, even then offence of fornication punishable under Section 496-B of P.P.C. was made out, which was entailing the penalty of imprisonment extending only upto five years alongwith fine, and was non-cognizable as well as bailable, because both petitioner and victim had been committing sexual intercourse with each other with their consent; offence of rape defined under Section 375 of P.P.C. was not made out; family of the victim and complainant was a habitual blackmailer.
6. I am unable to subscribe to the contention of learned counsel for petitioner, because in the case in hand a promise of the marriage was allegedly made by petitioner with Mst. Shaheen Bibi/victim (divorcee), as such he obtained her consent on the basis of fraud and allurement, and under that pretext victim submitted her body and allowed the petitioner to have sexual intercourse with her. Such like consent is not a consent in the eye of law, which has been obtained by practicing a deception. I feel no hesitation in holding that victim Mst. Shaheen Bibi was subjected to sexual intercourse from time to time by petitioner against her will and without her consent, as such ingredients of the offence of rape as envisaged in Section 375 of P.P.C. are squarely fulfilled.
7. Victim has given birth to an illegitimate child, who was at present of the age of 5/6 months. D.N.A. report in this case was positive, which established the petitioner as biological father of said child. There was no need of any further evidence to establish the offence. Statement of victim recorded under Section 161 of Cr.P.C. and 164 of Cr.P.C. was alone sufficient, which sought full corroboration and confirmation from M.L.R. and D.N.A. test report and fact of giving birth to a child by the victim. Prima facie involvement of petitioner in the crime stood fully established. No inference other than that of the guilt of accused could be drawn. There was not even an iota of the material to suggest that the case was requiring further inquiry.
8. Act of the petitioner has put prestige and honour of the family of victim on cross roads and spoiled whole of the life of victim and particularly that of child, which presented a dreadful picture. Circumstances do not permit me to extent any leniency in favour of the petitioner.
9. For the reasons recorded supra, the present petition has no force, hence dismissed.
10. Needless to mention that any observation made in the above order are tentative in nature and shall not influence the learned trial court in any manner.
JK/B-9/L Petition dismissed.