MUHAMMAD BOOTA and others vs THE STATE
This matter arose out of a post-arrest bail application filed by petitioners Muhammad Boota and Ramzan in a case registered under Section 338-A of the Pakistan Penal Code 1860 and Section 10 of the Offence of Zina (Enforcement of Hudood) Ordinance 1979. The prosecution alleged that the petitioners committed sexual intercourse with the complainant and subsequently caused her miscarriage (Isqat-i-Haml). The core legal question was whether the petitioners were entitled to post-arrest bail considering the evidentiary material available against them. The Lahore High Court allowed the application and granted bail to the petitioners. The Court held that the indefinite and unexplained delay in lodging the First Information Report cast a significant doubt on the prosecution's case. Additionally, as the petitioners were declared innocent during police investigation by the Deputy Superintendent of Police, reasonable grounds to believe their guilt in a non-bailable offence did not exist, bringing the case within the ambit of further inquiry under Section 497(2) of the Code of Criminal Procedure 1898.
- Whether an unexplained and indefinite delay in lodging an FIR casts doubt on the prosecution case for the purpose of granting bail?
- Does a finding of innocence by a investigating police officer entitle the accused to bail under Section 497(2) of the Code of Criminal Procedure 1898 on the ground of further inquiry?
- Section 338-A, Pakistan Penal Code 1860
- Section 10, Offence of Zina (Enforcement of Hudood) Ordinance 1979
- Section 497, Code of Criminal Procedure 1898
- Section 497(2), Code of Criminal Procedure 1898
ORDER
' Muhammad Boota petitioner aged about 18 years and Ramzan petitioner aged about 27 years were arrested on the 27th of October, 1998, in pursuance of a case registered against them and 3 others, vide First Information Report No,211, dated the 23rd of July, 1998, under section 338-A, P.P.C.
To which section 10 of the Offence of Zina (Enforcement of Hudood) Ordinance of 1979 was added later on, at Police Station Athara Hazari, District Jhang, regarding an occurrence which allegedly took place on an unknown date and time, in the area of village Wasaw, which is about 8 kilometers from Police Station Athara Hazari, where the first information report was lodged by Mst. Rani complainant.
2. The allegation against the petitioners is that they committed sexual intercourse with Mst. Rani and when she became pregnant they caused Isqati-Haml with the help of Mst. Sakina and Mst.
Bhoori.
3. There is an indefinite delay in lodging the first information which per se casts a doubt on truthfulness of the prosecution case, both the petitioners have been found "innocent" by the Deputy Superintendent of Police Saddar, Jhang on the 20th of November, 1998 and a discharge report was prepared which was turned down by the learned Magistrate, therefore, reasonable grounds to believe that the petitioners are guilty of an offence punishable with death or imprisonment for life or imprisonment for 10 years do not seem to exist. However, the case against the petitioners may be a matter of further enquiry within the meaning of subsection (2) of section 497, Cr.P.C. Which entitles them to the grant of bail.
4. Resultantly, the petitioners are granted bail provided they furnish bail bonds in the sum of Rs,50,000 each with two sureties each in the like amount to the satisfaction of the trial Court.