MUHAMMAD RAFIQ Versus THE STATE
This matter concerns two criminal bail applications filed by accused persons seeking confirmation of pre-arrest bail in a case involving allegations of robbery and sodomy. The core legal question was whether the accused were entitled to the concession of pre-arrest bail given the nature of the allegations and the evidentiary material on record. The Court held that the bail application of Muhammad Rafiq must be dismissed, while the bail for Rajab Ali and Imdad Hussain was confirmed. The Court reasoned that while minor discrepancies, such as the initial omission of the sodomy allegation in the Roznamcha entry, are excusable in cases involving personal honor, the specific role attributed to Muhammad Rafiq in the FIR, supported by medical evidence confirming anal intercourse, established a prima facie case. The Court affirmed that where there is ample evidence connecting an accused to a crime falling within the prohibitory clause, and no evidence of mala fide, pre-arrest bail should not be granted. The principle established is that the gravity of the offense and the strength of the prosecution's evidence outweigh minor procedural delays or omissions in reporting sensitive crimes.
- Does the initial omission of a specific allegation in a Roznamcha entry invalidate a subsequent FIR in cases involving personal honor?
- Is an accused entitled to pre-arrest bail when the offense charged falls within the prohibitory clause and there is medical evidence connecting the accused to the crime?
- Can pre-arrest bail be granted to an accused whose name was not mentioned in the FIR and was only implicated later without an identification test?
- Section 497, Code of Criminal Procedure 1898
ORDER
I would like to dispose of Criminal Bail Applications Nos. 71 of 2003 and 567 of. 2002 by this single order as they arise out of the same crime.
2. Briefly, the facts of this case are that one Dost Ali lodged First Information Report at Police Station Chamber stating therein that on 10‑5‑2002 he was returning from his fields and at about 10‑00 p.m. when he reached near the sugarcane cultivation of Kalyars he was way laid by Abdul Karim alias Khuda Dino, Umar Rafiq and two unknown persons. Out of them Abdul Karim alias Khuda Dino was armed with gun, Umar was armed with pistol whereas the remaining culprits were armed with Lathies and hatchets. They dragged him in sugarcane cultivation and removed his clothes. The accused snatched Rs.2,000 from him. After that accused Khuda Dino alias Abdul Karim, Umar and Rafiq committed sodomy turn by turn upon him. They also gave him cigarette burn scars upon various parts of his body including around the anal and caused him Lathi blows. This process continued for about 2 hours.
3. The complainant then heard the noise of some people at road and he raised cries. The cries attracted Fateh Bux Rind and Muhammad Ismail Lashari. On seeing the aforesaid persons the culprits made their escape good. He then narrated the aforesaid story to Fateh Bux and Ismail who accompanied the complainant to his village and apprised of these facts to Zamindar Munawar Rind who took him to police station and the police on hearing the aforesaid facts recorded Roznamcha entry of complainant and gave him a letter for treatment.
4. The police recorded F.I.R. on 17‑5‑2002 an after registration of the F.I.R. police took up the investigation. The applicants apprehending their arrest applied, for pre‑arrest bail in the Court of Sessions Judge, Hyderabad but same was refused.
5. Accused Muhammad Rafiq was admitted to pre‑arrest bail by this Court vide order, dated 23‑10‑2002 whereas accused Rajab Ali anted Imdad Hussain were granted interim pre‑arrest bail on 3‑2‑2003.
6. I have heard Mr. Muharram G. Balouch, Mr. Rasheed Qureshi, Asstt. A.‑G. for.the State and Mr..Anwar. A. Khan, Advocate for the complainant.
7. The names of accused Rajab Ali and Imdad Hussain do not figure in the F.LR. No prosecution witness has taken their names in police statements. For the first time further statement of complainant Dost Ali was recorded by the police on 10‑10‑2002 wherein he disclosed the names of accused Rajab and Imdad Ali. He stated that now he has come to know that two unknown persons were Imdad Ali and Rajab, Neither they were shown to the complainant nor any identification test was held, therefore, both the accused were rightly granted pre‑arrest bail which is hereby confirmed on same terms and conditions.
8. The case of Muhammad Rafiq is on different footings as his name transpires in the F.I.R. he has been ascribed specific role of committing sodomy upon victim and so also causing cigarette scorches. He alongwith other was armed with weapons. They forcibly committed sodomy and robbed him of Rs.2,000.
9. No doubt Roznamcha entry was recorded by the police wherein the fact of sodomy was not disclosed but in the matter when the honour of a person or family is involved, the man whose honour or dignity is at stake takes considerable time to take a final decision in the matter and the superior Courts in such matters have given no much importance to time factor or such type of minor discrepancies. Police on the next day of incident i.e. 11‑5‑2002 prepared Mashirnama of injuries. He was also referred to a doctor who examined him on the next day and found two burnscars available on posterior to anal orifice, two fissures (tears) at 5 and 9 O'Clock position in terminal part of anal canal. Anal canal is unflammed and tender to touch. Gall is painful. He has opined that anal intercourse has been committed upon him. Although the two certificates issued by the doctor on same day show different colours of the clothes of victim but it does not affect the report of sodomy. The police papers indicate that the police as well as Medical Officer made efforts to shatter the case of complainant.
10. Learned counsel argued that the applicant Rafiq has been involved due to enmity. No such document is available on record. Against the report of Medical Officer, Board of Doctors was constituted which consisted of six Professors headed by Chairman Professor Ghulam Ali Memon, Professor of Surgery LUM&HS Jamshoro. They have concurred with the report of Medical Officer. The offence with which the accused has been charged is covered by prohibitory clause. Ample evidence is available on record to connect the accused Muhammad Rafiq with the commission of crime, no mala fide apparently appears on the record. The mere fact that in Roznamcha entry his name was not disclosed or the factum of sodomy was concealed is no ground for extending concession of pre‑arrest bail to the applicants. The act of accused otherwise appears to be cruel and brutal.
11. Rasheed A. Qureshi learned Asstt. A.‑G. has opposed the bail plea of accused Muhammad Rafiq. Bail application of accused Muhammad. Rafiq stands dismissed and interim pre‑arrest bail order, dated 23‑10‑2002 is recalled.
H.B.T./M‑68/K Order accordingly.