Habibullah Versus State
This matter concerns a post-arrest bail application filed by the accused, Habibullah, in a case registered under Sections 375-A, 377, and 34 of the Pakistan Penal Code 1860, involving allegations of sodomy. The core legal question was whether the accused was entitled to bail given the exculpatory DNA evidence and the questionable conduct of the prosecution witnesses. The court held that the applicant was entitled to post-arrest bail, finding that the DNA report, which failed to match the accused with the victim, established a case for further inquiry under Section 497(2) of the Code of Criminal Procedure 1898. The court emphasized that the severity of an offense alone is insufficient to deny bail and that the liberty of an accused should not be restricted as a form of punishment. Furthermore, the court noted that the investigation was complete, the accused was in judicial custody, and the trial had not progressed, rendering continued detention unnecessary. Consequently, the bail application was granted subject to the furnishing of solvent surety.
- Does a negative DNA report in a sodomy case constitute sufficient grounds for further inquiry under Section 497(2) of the Code of Criminal Procedure 1898?
- Is the severity of an offense alone a sufficient ground to deny a bail plea?
- Can bail be denied as a form of punishment before trial?
- Does the completion of investigation and the lack of trial progress justify the grant of bail?
- Section 34, Pakistan Penal Code 1860
- Section 375-A, Pakistan Penal Code 1860
- Section 377, Pakistan Penal Code 1860
- Section 173, Code of Criminal Procedure 1898
- Section 497, Code of Criminal Procedure 1898
Order
Amjad Ali Bohio, J .--- Applicant/ accused Habibullah son of Abdul Khan, seeks post-arrest bail in FIR No. 96/2023, registered at PS Digri under Sections 375-A, 377, and 34 P.P.C, as his bail application was dismissed through order dated 01.12.2023 passed by the learned Additional Sessions Judge-II/GBV/Anti-rape Court Mirpurkhas.
2. Allegedly, the complainant's son Shahzaib was forcibly taken away on the force of pistol by the accused Habibullah accompanied by Imam Bux alias Machhar, both belonging to the Bharmani caste. Incident is alleged to have been witnessed by PWs Sajid Ali and Abid Ali on the road leading towards Tando Ghulam Ali. After some time the accused left the victim Shahzaib, at the National Bank in Digri, where same PWs Sajid Ali and Abid Ali were already present. The victim disclosed to the witnessed about the act of sodomy committed against him by both accused. This incident was subsequently conveyed to the complainant, and on , 09.09.2023, the complainant's husband brought the victim to PS Digri. Following this, the victim was referred for his medical examination, leading to the lodging of the FIR on 10.09.2023.
3. The counsel for the applicant/accused argued that the final medical report of victim Shahzaib, submitted by the Medical Officer at Taluka Hospital, Digri, in letter No.309 dated 03.11.2023 after receiving the DNA report, indicates that semen, blood, and clothing samples were sent to the Forensic and Molecular Biology Laboratory, Jamshoro and it was opined that these samples did not match with those of the applicant/accused, Habibullah, and Imam Bux alias Machhar. This fact according to him is unrebutted. Furthermore, the counsel asserted that the investigation has been concluded, and the applicant/accused is confined in jail. Consequently, he contended that there is no need for further investigation involving the physical custody of the accused. The counsel went on to argue that the prosecution's narrative appears questionable from the outset. According to him, the applicant/accused allegedly took away the victim in the presence of PWs Sajid Ali and Abid Ali, who despite being the victim's uncles, failed to resist or pursue the culprits. This raised suspicions, especially considering that the same witnesses were present at the location where the applicant/accused supposedly left the victim after committing the alleged offence of sodomy. It is asserted that it is quite unusual that PWs Sajid Ali and Abid Ali did not attempt to apprehend the culprits and allowed them to escape freely. In support of his argument, he relied upon the case laws reported as 2016 SCMR 1523 [Supreme Court of Pakistan], 2023 PCr.LJ Note 19 [Islamabad], 2018 PCr.LJ Note 132 [Sindh], 2019 MLD 1168 [Lahore] and 2021 PCr.LJ 1209.
4. The counsel representing the complainant and the learned Assistant Prosecutor General (A.P.G) opposed the bail application on the grounds that the applicant/accused is named in the FIR, facing allegations of committing the offense of sodomy against victim Shahzaib. They further argue that proper order has been passed for dismissal of bail application.
5. Prima facie as per the details mentioned in the FIR, both accused allegedly used pistols to take the victim on their motorcycle, heading towards Tando Ghulam Ali road. It is pertinent to mention that PWs Sajid Ali and Abid Ali though were present at the scene, yet they did not attempt to restrain the accused. Subsequently, the accused left the victim near the National Bank in Digri. Surprisingly, PWs Sajid Ali and Abid Ali were actively searching for the victim at the same location and did not set the criminal law into motion. Further as per their narrative applicant/accused dropped the victim from their motorcycle and managed to escape easily. This scenario raises questions as to why PWs Sajid Ali and Abid Ali did not prevent the accused from escaping once again. The victim then disclosed to both witnesses about the alleged act of sodomy committed by the accused at bushes in the lands of Mir Khan Bahadur.
6. The continuous presence of PWs Sajid Ali and Abid Ali during all such period at the same place when the accused was being taken away and left suggests for further inquiry. Moreover, following the arrest of the accused, the Medical Officer at Taluka Hospital, Digri, conducted medical examination. The applicant/accused provided blood samples and a sealed parcel of clothes for Forensic DNA testing through L.U.M.H.S Laboratory, Jamshoro. Upon receiving the DNA report dated 30.10.2023 (vide letter No.LUMHS/FML/731/2023), the Medical Officer at Taluka Hospital, Digri, in a letter dated 03.11.2023 (No.309), submitted the final Medico legal report which is included in the police papers. This report revealed that the DNA profile of victim Shahzaib did not match that of the applicant/accused. Consequently, it is argued that the case against the applicant/accused necessitates further inquiry. Moreover, the accused is in judicial custody and is no more required for further investigation.
7. It is the well-established legal principle that the severity of an offence alone is not sufficient ground to deny a bail plea. The fundamental concept underlying bail is that the liberty of an innocent person should not be restricted until proven otherwise. Section 497(2) of the Criminal Procedure Code establishes that for bail to be granted, the court must be convinced, based on the evidence presented, that there are reasonable grounds to believe that the accused is not guilty of an offence punishable for death or life imprisonment. This section also emphasizes that the court should consider whether there are sufficient grounds for further inquiry into the accused's guilt. Such further inquiry should indicate to the case's outcome and demonstrate or tend to show the accused's innocence. Bail, being a discretionary relief, requires the court to exercise its discretion fairly and judiciously. In the context of the court, the term "discretion" implies sound judgment guided by the law, aiming to alleviate the hardship faced by individuals. A foundational legal principle asserts that bail should not be denied as a form of punishment.
8. Upon examining the DNA report, it is evident that the medical record does not establish any connection between the applicant/accused and the alleged crime. The applicant/accused has been in custody since the arrest on 10.09.2023. The report under Section 173 of the Criminal Procedure Code has been submitted to the trial court on 09.11.2023, yet there has been no progress in the trial so far. Under these circumstances, the continued detention of the applicant/accused for an indefinite period would not serve any meaningful purpose for the prosecution. Reference is made to the precedent set by the esteemed Supreme Court of Pakistan in the case of Abdul Ghaffar v. The State and others (2016 SCMR 1523) to support the argument. A preliminary examination of the records indicates that the applicant has presented a case warranting further inquiry, as outlined in Section 497(2) of the Cr.P.C.
9. Considering the circumstances outlined above, instant bail application is granted subject to furnishing solvent surety amounting to Rs.100,000/- (One Hundred Thousand) and a Personal Recognizance bond in the same amount to the satisfaction of the trial court.
10. Needless to mention that, this is a tentative assessment which shall not affect the trial of case in any manner.
MQ/H-15/Sindh Bail granted.