MUHAMMAD ABBAS vs THE STATE
This matter arises from a post-arrest bail petition filed by Muhammad Abbas seeking pre-trial release in case F.I.R. No. 334 registered under Section 10(3) of the Offence of Zina (Enforcement of Hudood) Ordinance, 1979 at Police Station Saddar, Arifwala. The core legal question concerns whether the petitioner made out a case for further inquiry under Section 497(2) of the Code of Criminal Procedure, 1898, given the delayed F.I.R., lack of external injuries on the prosecutrix during a delayed medical examination, contradictory statements and affidavits by eye-witnesses, absence of a Chemical Examiner's report, and conflicting findings by successive investigating officers. The Lahore High Court accepted the petition and held that the cumulative effect of these evidentiary discrepancies rendered the petitioner's guilt a matter of further inquiry. The court laid down the principle that conflicting police investigations, delayed reporting, contradictory witness statements, and absence of supporting medical or chemical evidence constitute sufficient grounds to bring a case within the ambit of further inquiry under subsection (2) of section 497 of the Code of Criminal Procedure, 1898, warranting the grant of post-arrest bail.
- Does a delayed F.I.R. coupled with conflicting statements of eyewitnesses bring a case within the scope of further inquiry under Section 497(2) of the Code of Criminal Procedure 1898?
- Whether contradictory stances taken by successive investigating officers regarding the guilt of an accused constitute grounds for post-arrest bail?
- Is the absence of marks of violence in a delayed medical examination of the prosecutrix a relevant consideration for granting bail in a Zina case?
- Section 10(3), Offence of Zina (Enforcement of Hudood) Ordinance 1979
- Section 497(2), Code of Criminal Procedure 1898
ORDER
' Through this petition Muhammad Abbas petitioner has sought post-arrest bail in case F.I.R. No,334 registered at Police Station Saddar, Arifwala, District Pakpattan Sharif on 23-7-2000 for an offence under section 10(3) of the Offence of Zina (Enforcement of Hudood) Ordinance, 1979.
2. After hearing the learned counsel for the parties and going through the record it has been noticed that the F.I.R. In this case had been lodged with a delay of about 13 hours. The allegation in the F.I.R. That the prosecutrix was dragged by the present petitioner to a nearby field situated about an acre away before subjecting her to Zina-bil-Jabr prima facie cannot be accepted except with a lump of salt. The prosecutrix was subjected to medical examination three days after the occurrence and her medical examination did not show any mark of violence on any part of her body. It is available on the record that the first statements made by Munir and Abdul Sattar P. Ws.
Before the Investigating Officer in support of the allegations levelled in the F.I.R. Were made on 20- 11-2000 i.e, almost three months after the incident in question. It is also available on the record that on 31-7-2000 both the said alleged eye-witnesses had appeared before the Investigating Officer and had placed copies of their affidavits on his record to the effect that they had wrongly been cited in the F.I.R. As eye-witnesses as they had not seen any such incident. In these circumstances the subsequent volte face by the said witnesses incriminating the present petitioner and posing themselves to be eye-witnesses of the alleged incident is again a circumstance which prima facie is extremely doubtful. It is also available on thejecord that Abdul Sattar P.W. Had made a statement before the learned Additional Sessions Judge, Arifwala on 15-12-2000 categorically maintaining therein that he had never witnessed the alleged incident of commission of Zina-bil-Jabr by the petitioner with Mst. Faizan Bibi. No report of the Chemical Examiner is available on the record so far regarding vaginal swa bs of the prosecutrix. The first Investigating Officer of this case i.e, the Station House Officer of Police Station Saddar, Arifwala had declared the petitioner to be innocent; the second Investigating Officer i.e, the Assistant Superintendent of Police, Arifwala had found the petitioner to be guilty and, this Court has been informed today, the case in hand is being investigated afresh presently by the Incharge, C.I.A. Pakpattan. This shows that even the Investigating Agencies have so far not been able to concur on the question of guilt of the present petitioner. All these factors clearly show that the case against the petitioner calls for further inquiry into his guilt within the purview of subsection (2) of section 497, Cr.P.C. This petition is, therefore, allowed and the petitioner is admitted to bail subject to furnishing bail bond in the sum of Rs,50,000 (Rupees fifty thousand only) with one surety in the like amount to the satisfaction of the learned trial Court.