MUHAMMAD ISMAIL vs THE STATE
This post-arrest bail application was filed by the petitioner, who was accused of committing zina-bil-jabr against a 12/13-year-old girl under Section 10 of the Offence of Zina (Enforcement of Hudood) Ordinance 1979. The petitioner contended that he was falsely implicated due to a property dispute between his father and the complainant. He relied on an unexplained 11-day delay in lodging the F.I.R. and conducting the victim's medical examination, as well as the Medico-Legal Report showing an intact hymen and no marks of violence, alongside a negative Chemical Examiner report. The prosecution opposed the petition, emphasizing that the petitioner was named as the sole accused and linked to the offence by prosecution witnesses. The Lahore High Court observed that the medical evidence and negative Chemical Examiner report, combined with the delay, raised substantial doubts about the prosecution case. The Court held that these circumstances brought the case within the ambit of further inquiry under Section 497(2) of the Code of Criminal Procedure 1898, and accordingly granted post-arrest bail.
- Whether an accused is entitled to post-arrest bail under Section 497(2) of the Code of Criminal Procedure 1898 when medical evidence fails to corroborate allegations of rape?
- Does an unexplained delay in lodging an FIR and conducting a medical examination constitute a ground for further inquiry into the guilt of the accused?
- Whether a negative Chemical Examiner report regarding vaginal swabs makes out a case of further inquiry in a prosecution for zina-bil-jabr?
- Section 10, Offence of Zina (Enforcement of Hudood) Ordinance 1979
- Section 497(2), Code of Criminal Procedure 1898
ORDER
' Muhammad Ismail, the petitioner has sought for post-arrest bail in Case F.I.R. No.212 dated 19-5- 2003, under section 10 of the Offence of Zina (Enforcement of Hudood) Ordinance No.VII of 1979 registered with Police Station, New Multan.
2. Briefly the prosecution case as per F.I.R. Is that on 8-5-2003 at about 1-30 p.m. He has subjected Mst. Shabana Bibi aged about 12/13 years, the daughter of the complainant to zina-bil-jabr in her house.
3. It has been contended on his behalf that he has falsely been roped in on account of dispute over five Marlas house between his father and the complainant and the latter (complainant) has used his said daughter `or his involvement in the case; that these is 11 days' delay in lodging the F.I.R. As well as med:-..Al examination of the said girl and there is no reasonable explanation of the same; that the medical examination's report of the girl has suggested that she was not at all subjected to zina-bil-jabr and this belief has further been strengthened by the report of Chemical Examiner which indicated that her vaginal sawabs were not stained with semrn and so all these facts render his case to further inquiry into his guilt and so the same is covered under subsection (2) of section 497, Cr.P.C.; and that he is behind the bars and previous non-convict.
4. Conversely, the learned counsel for the State assisted by the learned counsel for the complainant has opposed the petition on the ground that he is named in the F.I.R.; that he is the only accused in the case; that there is explanation of delay in the F.I.R. As well as the medical examination of the said girl; that there is statement of the victim besides other witnesses on the basis of which he prima facie is linked with the crime; and that he has committed a heinous offence by subjecting a young girl to ZinaBil-Jabr.
5. ,I have carefully considered the submissions made by the learned counsel for the parties with the help of available record.
6. He allegedly has subjected the said girl to zina-bil-jabr in her house. There is with the petition the copy of her MLR. The same is as follows:-- "General Examination:---No marks of violence seen on any part of the body. Breasts developed, axillary and pubic hair black in colour.
' P/V Examination:---V/V: Healthy, no staining or bleeding.
' Hymen: Intact.
' Three external vulval swa bs taken and being sealed for the detection of semen if any."
The above position shows that no mark of violence was found on any part of her body, while allegedly she was subjected to zina-bil-jabr by him (petitioner), who statedly is aged about 22/23 years. The report of Chemical Examiner is also in the negative as her vaginal swabs sent there were found not to be.Stained with semen.
7. There is also some delay in lodging the F.I.R. As well as her medical examination.
8. All these facts certainly bring his case within the purview of further inquiry into his guilt as envisaged by subsection (2) of section 497, Cr.P.C.
9. He is behind the bars and stated to D be previous non-convict.
10. In these circumstances, I find him entitled to bail. The petition, therefore, is accepted and he is admitted to bail provided he furnishes bail bonds in the sum of Rs.50,000 (Rupees fifty thousands) with one surety in the like amount to the satisfaction of the learned trial Court.