IKHTIAR GUL and 2 others vs THE STATE
This petition for leave to appeal challenged a Peshawar High Court judgment that cancelled the bail previously granted to the petitioners by the Sessions Judge, Kohat, in a case involving allegations of Zina. The petitioners, who were court employees, were accused of committing sexual intercourse with a woman found with them in a garage on court premises. While the Chemical Examiner reported positive findings of semen on the clothing of two petitioners, no such evidence was found on the third, and the complainant showed no signs of violence. The petitioners contended they were falsely implicated due to a prior complaint filed against a local police officer. The Supreme Court considered whether the High Court erred in cancelling the bail. The Court held that, without independent corroborating evidence at this stage, the case against the petitioners was arguable for the purpose of bail. Consequently, the Court allowed the petition, confirmed the interim bail for one petitioner, and granted bail to the others, emphasizing that the case required further trial scrutiny rather than pre-trial detention.
- Does the presence of semen stains on an accused's clothing, without independent corroborating evidence, justify the cancellation of bail in a Zina case?
- Is the High Court justified in cancelling bail granted by a Sessions Court when the case against the accused remains arguable?
- Can a prior complaint filed by the accused against a police officer be considered as a ground for potential false implication in a subsequent criminal case for the purpose of bail?
- Section 353, Pakistan Penal Code 1860
- Section 500, Pakistan Penal Code 1860
- Section 504, Pakistan Penal Code 1860
- Section 506, Pakistan Penal Code 1860
- Section 323, Pakistan Penal Code 1860
ORDER
1. ' FAZAL ILAHI KHAN, J.---This petition for leave to appeal with notice to the State is directed against the judgment of the Peshawar High Court dated 27-11-1993 in Cr. Miscellaneous No,719 of 1993 whereby the bail of the accused/petitioners, granted by the Sessions Judge, Kohat, was cancelled.
2. On the information received by the Police on 18-5-1993 that a woman was taken to a nearby room in the Kutcher premises. The police party arrived at the spot where they found the accused/petitioners along with a lady; namely, Mst. Saeeda alias Awwal Nisa present in the garrage. The lady reported to the police that she was on her way from K.D.K. Kohat that on the Katcheri gate the accused/petitioner caught hold of her and took her to a room where they committed Zina with her. It may be pointed out that Ikhtiar Gul petitioner is a Chowkidar, Salim petitioner is a Peon in the Sessions Court while Niaz Ali is Chowkidar of the Court of Senior Civil Judge.
3. ' The accused/petitioners were medically examined and found fit to commit sexual intercourse, Semen was detected on the Shalwar of Niaz Ali and Ikhtiar Gul which was sent to the Chemical Examiner whose report is in the positive. There was no such stains detected on the clothes of Salim.
4. The lady on her examination was found to have no evidence of violence or injury on her body. She was arrayed as a co-accused being a consenting party to the offence.
5. ' The learned Sessions Judge granted bail to the accused/petitioners vide his order dated 10-6- 1993 which was cancelled by the learned High Court on the application of Advocate-General, N.- W.F.P., Peshawar.
6. ' On hearing the learned counsel for the petitioners interim bail was granted to Salim Khan accused/petitioner No,3 on 8-1-1994 as there was no evidence on the record corroborating the complainant' s revision that he had committed sexual intercourse with Mst. Saeeda. It was contended by the learned counsel for the petitioners that sometime before the occurrence theft of electric fan took place from the Bar room and in that connection the local police had belaboured the petitioner though they had nothing to do with the premises where the Bar room is situated.
7. Petitioners had, therefore, filed a complaint against Amin Nawab Shah, S.H.O.. P.S. Cann. In the Court of Sessions Judge, Kohat and proceedings were initiated against him under section 353/500/504/506/323, P.P.C. Against the said police officer. However, the matter was subsequently compromised and the police officer was discharged in the complaint case, copy of the complaint has been placed on the file. For this reason mala finely the petitioners have been falsely implicated in the case with the connivance of Mst. Saeeda, a woman of bad character. It was further contended that the petitioners are married, grown up persons, therefore, even if there were found some semen stains on their Shalwars, the same cannot in any way connect the accused with the commission of the offence. It was lastly contended that the learned Sessions Judge having exercised his discretion in the matter of bail after taking into consideration the material available on the file no interference was required by the High Court.
8. After hearing the learned counsel for the parties, without going into the merits of the case, we feel that in absence of any other independent evidence at this stage the case of the petitioners is arguable for the purpose of bail. This petition is, therefore, allowed. The interim bail granted to Saleem Khan petitioner is confirmed whereas Ikhtiar Gul and Niaz Ali petitioners Nos.1 and 2, are allowed bail in the sum of Rs,20,000 each with one surety each in the like amount to the satisfaction of trial Court.