PERVAIZ Versus THE STATE
This matter concerns a post-arrest bail application filed by the accused, Pervaiz, who was charged with the offense of Zina. The core legal question was whether the applicant was entitled to bail based on the evidentiary material available at the pre-trial stage, specifically considering the negative chemical report and the release of co-accused persons. The Court observed that the police had recommended the release of the co-accused under Section 497(2) of the Code of Criminal Procedure 1898, which was accepted by the Magistrate. Furthermore, the medical report merely indicated the complainant was not a virgin, and the chemical analysis of recovered items (bed sheet and cloth) yielded negative results for semen. Holding that the prosecution's case required further investigation, the Court granted bail. The key principle laid down is that where the primary evidentiary material—such as chemical reports—fails to corroborate the allegation of Zina and co-accused have been discharged due to lack of evidence, the case falls within the scope of 'further enquiry' under Section 497(2), Code of Criminal Procedure 1898, justifying the grant of bail.
- Does a negative chemical report regarding the presence of semen in a Zina case constitute grounds for further enquiry under Section 497(2) of the Code of Criminal Procedure 1898?
- Can bail be granted when the police have already recommended the release of co-accused persons due to a lack of evidence?
- Section 497(2), Code of Criminal Procedure 1898
ORDER
1. Learned counsel submits that there is hardly any evidence against the applicant apart from the F.I.R. In this connection he has pointed out that co‑accused have been released by the concerned Magistrate upon recommendation of the police under section 497(2), Cr.P.C. since per their investigation these co‑accused viz. Ghulam Qadir and Sahibzadi were not involved in the crime in question. Further learned counsel says that as far as the medical report is concerned, it is only to the extent that the complainant is not a virgin, which does not establish any thing as far as the alleged crime of Zina is concerned. Additionally learned counsel has submitted that the chemical report is also negative regarding any pieces of semen etc. from the recovered articles viz. bed sheet and the pieces of cloth, which were allegedly used by the applicant/accused in order to clean both himself as well as the complainant after the alleged Zina took place. Consequently, learned counsel prays that in the circumstances of the case the applicant be released on bail as this is a case of further enquiry.
2. Learned counsel for the State has not opposed the grant of bail at this stage.
3. I have heard both the learned counsel as well as the learned State Counsel;.
4. The facts of the matter in brief are per F.I.R. No.123 of 2002 lodged at Police Station Surjani Town, Karachi, on 8‑6‑2002, that complainant was subjected to Zina by the applicant/accused in complicity with the co accused Ghulam Qadir and Sahibzadi who were the maternal uncle and aunt of the complainant. It has been particularly alleged in the F.I.R. that although such Zina was being committed in the presence of Mst. Sahibzadi she did not make any effort to rescue the complainant. As against the version of the complainant it has come on the record that the police has recommended the release of co‑accused Ghulam Qadir and Mst. Sahibzadi under section 497(2) of Cr.P.C. which was allowed by the concerned Magistrate. Similarly, the medical report is only to the extent that the complainant is not a virgin and also the chemical certificate is silent as regards any particle of semen, which may have been available on the recovery of pieces of cloth and bed sheet. In these circumstances, in my opinion, this is a case of further equity, hence bail is granted to the applicant/accused provided furnishes solvent surety in the sum of Rs.1 lac and P.R. Bond in the like amount to the satisfaction of the Nazir of this Court.
5. Bail application is disposed of alongwith the listed application.
6. H.B.T./P‑74/K Bail granted.