Mst. RUBINA vs THE STATE
This matter arises from a bail application filed by Mst. Rubina, who was initially the complainant in an F.I.R. concerning abduction and Zina, but was subsequently arrayed as an accused and absconder in the police challan. The core legal question is whether the applicant made out a case for post-arrest bail on the ground of further enquiry, considering that she lodged the F.I.R. herself and alleged mala fides and defective investigation by the police. The Sindh High Court held that since the State did not oppose the bail and multiple disputed points regarding the applicant's consent and police conduct remained shrouded in mystery requiring deep probe, the case fell within the purview of further enquiry under section 497(2) of the Criminal Procedure Code. The court granted bail to the applicant and additionally directed the D.I.G. Karachi to entrust the further investigation of the case to an honest and efficient officer not below the rank of D.S.P. to uncover the true facts and examine the role of the police and other culprits.
- Whether an accused who was initially the complainant of an F.I.R. can be granted bail when subsequently implicated by the police?
- Does a defective and mysterious police investigation warrant the grant of bail on the ground of further enquiry?
- Can the High Court direct a senior police officer to conduct a further investigation into an unsatisfactory police challan while granting bail?
- Section 34, Pakistan Penal Code 1860
- Section 354, Pakistan Penal Code 1860
Applicant, Mst. Rubina, lodged F.I.R. with Gulshan-e-Iqbal, Police Karachi, on 27-9-2001. The F.I.R. was recorded under sections 11/16, Zina Ordinance 342, 354/34, P.P.C.
2. The police after recording F.I.R. took up the investigation and submitted challan in the Court on 17-10-2001, wherein the aforesaid complainant/the present applicant was involved as accused and shown as absconder. On 26-10-2001. the applicant filed Constitutional Petition bearing No,423 of 2001 against S.H.O. Police Station' Gulshan-e-Iqbal, and others giving the details of the incident and subsequent events elaborately. The photostat copy of aforesaid - petition is produced on record. In which she accused the police of distorting the real and actual facts and thereby spoiled her case.
The version of the applicant put forward in C.P. is that the applicant used to work as female servant in Rufi Corner Bungalows. On 16-9-2001, she left her house for duty but on the way at about 8-00 a.m. near Bus stop 7-H, accused Shamsul Haque, Inam and Mufeez came in Yellow Cab Taxi, intercepted and took her forcibly alongwith her two kids. She was taken to a house situated at Liaquatabad where Rehan and Mohammad Ali the well-known dealers of Bangali girls were already available. They operate in league with area police. It is asserted further in the petition that all of the accused committed Zina upon her. They snapped her naked photographs and ultimately she was released on 25-9-2001. After her release, she lodged F.I.R. with Gulshan-e-lqbal Police on 27-9-2001. It is stated that the police first distorted the facts of her case in the F.I.R. and ultimately involved her falsely as, accused in order to give benefit to the actual culprits.
3. Mr. Fazlur Rehman Awan. learned counsel appearing for the State has stated his no objection to the bail plea of applicant on the ground that initially the F.I.R. was lodged by the applicant and had she been a consenting party, she must not have lodged the report against the accused.
4. The police record reveals that applicant was abducted on 16-9-2001 and she was kept in a house belonging to Mst. Zohra. The allegations levelled by the applicant in the Constitutional petitions are that she was forcibly abducted and then all accused committed Zina-bil-Jabr with her in the house of the aforesaid lady. Her naked photographs were also snapped there. It appears from the record that the Investigating Officer has not investigated the case fairly as responsible Investigating Officer. Numerous points still remain in mystery. Had the lady been a consenting party, then, why she lodged the report after her release and whether she could give her consent for taking her nude photographs. Also, this heinous offence took place in the house of Mst. Zohra who claims one of the accused to be her tenant. But the Investigating Officer seems not to have made sincere efforts to ascertain the real and true facts. Deep probe was also needed ,to know about the role of lady Zohra.
5. The bail plea is not opposed by the learned counsel appearing for the State. Since there are several disputed points which need further probe in the matter, therefore, in the circumstances the Case of applicant is fit for bail on the ground of further enquiry.
6. The accused is granted bail in the sum of Rs,1,00,000 (One lac) and PR bond in the like amount to the satisfaction of the trial Court.
7. The points which remain in mystery in this case have disturbed my mind, therefore, I would like to send this case to D.I.-G. for getting it investigated further. through some honest, independent and efficient police officer not below the rank of D.S.P, who should submit his clear report in this case on all the aspects including the following points:--
(1) Whether present accused and Rehan were involved in fornication?
(2) Whether Mst. Rubina was a consenting party and, if yes, then at what stage her consent was withdrawn and disappeared?
(3) Whether it was a case of gang rape?.
(4) Whether the remaining culprits who were let off by police were not involved in the matter including Zohra in whose house this untoward incident took place?
(5) In case, it is proved that it was a gang rape case, the challan be submitted in proper Court?
(6) Were the naked photographs snapped what was the motive behind that?
8. This enquiry report should reach within four weeks after the receipt of this order to the Registrar of this Court, who shall submit the same in Court. A copy of this bail order as well as photostate copy of Constitutional Petition No,423 of. 2001 be transmitted to D.I.G. Karachi and in case, the Investigating Officer is found guilty for conducting defective investigation in the matter, strict legal action be taken against him.