Rape and abduction. 2016 y L r 1259 [Sindh] Before Naimatullah Phulpoto, J

JUDGMENT

 

            IJAZ AHMED CHAUDHRY, J.---Through this petition, petitioner seeks cancellation of bail granted to the respondent No. 1 by the learned Judicial Magistrate in a case registered vide FIR No. 289 dated 19-6-2013 under sections 376/506/34, P.P.C. at Police Station Sara-e-Saleh, Haripur, which was affirmed by the learned two courts below.

 

2.         Brief allegation leveled against the respondent No. 1 by the petitioner is that she entered into a partnership with the respondent-accused and had also given her five tolas of gold but despite lapse of a considerable time, the respondent did not pay her profit. Despite repeatedly asking by the petitioner, the respondent evaded to pay her share in the business. On 6th of June, 2013 the respondent asked her to accompany her to Abbottabat where he was statedly opening a business. On the said date, the respondent came along with another person and picked the petitioner from Punian stop, Haripur, and thereafter on the way they committed zina-bil-jabr with her on pistol point and also made her naked pictures.

 

3.         After the registration of case, during the investigation, the respondent No. 1 filed a petition before a learned Judge in Chamber of the Peshawar High Court under section 561-A, Cr.P.C., which was accepted by the learned High Court and the FIR was quashed. Against the said order, the petitioner approached this Court and this Court vide order dated 4-2-2014 set aside the said order of the learned Single Judge in Chamber. Respondent then applied for pre-arrest bail which was dismissed. He then applied for post arrest bail before the Judicial Magistrate which was accepted vide order dated 5-5-2014. The petitioner moved application for cancellation of bail before the Additional Sessions Judge, Haripur, which was dismissed on 5-6-2014. Being aggrieved, the petitioner filed cancellation petition before the learned High Court, which also met the same fate vide impugned order.

 

4.         Learned counsel for the petitioner contends that the petitioner is a respectable practicing Advocate and she has been disgraced by the respondent; that the offence under section 376, P.P.C. is punishable with death or imprisonment of either description for a term which shall not be less than ten years or more than twenty-five years and the Magistrate was not competent to grant bail as the offence is triable by a Court of Session.

 

5.         Learned counsel for the respondent No. 1, on the other hand, has contended that word 'Court' has been used in section 497, Cr.P.C., which means that Magistrate was fully competent to grant bail to the respondent.

 

6.         We have heard learned counsel for the parties and have gone through the FIR and the other evidence collected by the Police during the investigation.

 

7.         Petitioner was a virgin lady and according to medical evidence she was subjected to sexual intercourse. She had got recorded the FIR on the same day but with a delay. However, the delay is of no help to the respondent as it has been repeatedly held by this Court that in such like cases delay in lodging the FIR is immaterial as people naturally avoid rushing to the police because of family honour. There was no previous enmity between the parties and it is against common sense that the petitioner would have concocted a story which can ruin her life. The offence falls under section 376, P.P.C., which is punishable with death or imprisonment of either description for a term which shall not be less than ten years or more than twenty-five years and according to Schedule-II, Column No. 8 of the Criminal Procedure Code, it is triable by a Court of Session. In such like cases, only the report under section 173, Cr.P.C. has to be submitted before the Magistrate. The Magistrate has nothing to do with the merits of the case and he is not competent to grant bail or pass any other order which can be passed by the trial Court. The only function of the Magistrate after the receipt of report under section 173, Cr.P.C. is to transmit the challan to the Court of competent jurisdiction/Sessions Court. In this view of the matter, the order passed by the learned Judicial Magistrate is without jurisdiction and both the learned lower Courts below have not considered this aspect of the matter. Even otherwise, prima facie there is sufficient material available to connect the respondent with the commission of offence.

 

8.         For what has been discussed above, this petition is converted into appeal and allowed and the impugned judgments are set aside. The bail granted to the respondent No. 1 is hereby cancelled. Respondent shall be taken into custody. However, it will be open for the respondent to approach the competent forum if any fresh ground is available to him.

 

MWA/N-5/SC                                                                                     Bail cancelled.

 

2015 Y L R 2592 [Peshawar]

Before Abdul Latif Khan, J

IHSANULLAH alias SANU---Petitioner Versus

The STATE through Additional Advocate General and another---Respondents

 

Cr. Miscellaneous No.125-M of 2014, decided on 9th June, 2014.

 

(a) Criminal Procedure Code (V of 1898)---

 

----S. 497---Penal Code (XLV of 1860), Ss. 376 & 506---Rape, criminal intimidation---Bail, refusal of---Complainant's version was supported by medical report---Delay in such cases did not dent prosecution story where sufficient material, prima facie, connected the accused with commission of alleged offence---Victim being a sixteen years old girl, could not be expected to risk her career and family honour by levelling allegations of such nature against accused, especially without any motive---Sufficient material was available on record to connect the accused with offence falling within prohibitory clause of S.497, Cr.P.C.---Bail application was dismissed.

 

(b) Penal Code (XLV of 1860)---

 

----S. 375---Rape---Ingredients---Man was said to have committed rape who had sexual intercourse with a woman under circumstances; (i) against her will; (ii) without her consent; (iii) with her consent, when the consent had been obtained by putting her in fear of death or of hurt; (iv) with her consent, when the man knew that he was not married to her and that the consent was given because she believed that the man was another person to whom she was or believed herself to have been married; or (v) with or without her consent when she was under sixteen years of age.

 

            Shaiber Khan for Petitioner.

 

            Muhammad Javed, A.A.-G. for Respondents.

 

            Date of hearing: 9th June, 2014.

 

JUDGMENT

 

            ABDUL LATIF KHAN, J.---Having failed to secure relief of bail from the Courts below, the accused-petitioner, namely, Ihsan Ullah alias Sanu, involved in case FIR No. 126 dated 29-3-2014, registered under sections 376/506 ,P.P.C. at Police Station, Alloch, District Shangla, has approached this Court for the said concession.

 

2. The allegations against the petitioner are that he on 27-7-2014 at isha vella committed rape upon complainant. Mst. Fozia Bibi, without her consent.

 

3. Arguments heard and record perused.

 

5(sic) Perusal of record reveals that petitioner has been charged by the complainant herself directly for committing rape upon her without her consent and her version is also supported by the medical report. No doubt, there is delay in lodging of the report but delay per se in such like offences is no ground for creating any dent in story of prosecution and cannot be made basis for bail when otherwise there is sufficient material available on the record which prima facie connecting the accused with the commission of offence. The contention of learned counsel that from the contents of FIR and in absence of marks of violence, as per medical report, the complainant was a consenting party but the story has been twisted into a case of rape is concerned, according to Section 375, P.P.C. a man is said to commit rape who has sexual intercourse with a woman under circumstances falling under any of the five following descriptions, i.e., (i) against her will (ii) without her consent, (iii) with her consent, when the consent has been obtained by putting her in fear of death or of hurt (iv) with her consent, when the man knows that he is not married to her and that the consent is given because she believes that the man is another person to whom she is or believes herself to be married (v) with or without her consent when she is under sixteen years of age. The victim is below sixteen years of age and it cannot be expected from her to put her career and family honour at stake by fabricating a false accusation of such a nature against the petitioner, particularly, in the absence of any motive. On tentative assessment of the case, there are sufficient materials available on record, which prima facie connect the petitioner with the commission of offence falling under the prohibitory clause of section 497, Cr.P.C. Apart from this, challan has been submitted before the court and the accused has been summoned by the court, therefore, at this stage of the case, the petitioner is not entitled to the concession of bail.

           

For the aforesaid reasons, this bail petition is dismissed. Needless to mention that this tentative assessment is for the purpose of disposal of bail petition and the same shall not prejudice the trial Court during trial of the case.

 

ARK/363/P                                                                                                      Bail refused.

 

 

 2010 P Cr. L J 1702 [Lahore]

 

Before Shahid Hameed Dar, J

 

MAZHAR IQBAL---Petitioner Versus THE STATE and another---Respondents

 

Criminal Miscellaneous No.4300-B of 2010, decided on 19th May, 2010.

 

Criminal Procedure Code (V of 1898)---

 

----S.497(1)---Penal Code (XLV of 1860), Ss.365-B & 376---Abduction and commission of rape---Bail, refusal of---Complainant girl, a student of degree classes, while going to her college had been adducted by the accused and his companions in a car and subsequently ravished by them---Solitary statement of the complainant was sufficiently reliable, which was corroborated by her medico-legal report---Sanctity of the report of the Chemical Examiner would be assessed during the trial---Virgin educated girl would never put her honour and dignity as well as that of her family at stake for falsely implicating the accused in the case---Opinion of Investigating Officer regarding innocence of accused was sketchy in nature---Offence with which the accused was charged fell within the mischief of the prohibitory clause of S. 497(1), Cr.P.C.---Bail was declined to accused in circumstances.  

 

Ch. Waseem Ahmad Gujjar for Petitioner.

 

Anwar Basit for the Complainant.

 

M.A. Amin Mian, Additional Prosecutor-General and Iftikhar S.-I. for the State.

 

 

ORDER____SHAHID_HAMEED_DAR,_J.'>ORDER

 

SHAHID HAMEED DAR, J.---The petitioner Mazhar Iqbal seeks his release on bail in case F.I.R. No.118 of 2010 dated 20-3-2010, under section 365-B read with section 376, P.P.C., registered at Police Station City Kamalia, District Toba Tek Singh wherein, he had been arrested on 7-4-2010 by the police and was dispatched to the judicial lockup on 12-4-2010.

 

2. The complainant Mst. Zakiya Parveen has briefly, alleged in the F.I.R. that she was moving through a street Mohallah Hussain Shah Wali at about 8-30 a.m. on 17-3-2010 in order to go to Degree College for Women, Kamalia where she was a student of 3rd year. Suddenly two motorcyclists intercepted and stopped her at gun point; in the meanwhile, two persons aboard a car reached there and forcibly made her sit in their car and drove her to a room of Dera which was situated at a deserted place; they gagged her mouth by an adhesive tape, tied her hands and feet and confined her there; one of the accused was Mazhar (petitioner) who and his companions committed Zina Bil Jabbar with her and illegally detained her; on the second day, the accused went to city Kamalia to fetch food so she slipped away from that place and reached a bus stop where from she reached Data Darbar, Lahore by a wagon and then, managed to reach Chichawatni by bus; her maternal uncle and brother brought her back to the house of her parents on 19-3-2010.

 

3. The complainant was medically examined at 4-00 p.m. on 20-3-2010 by a Women Medical Officer who as per her findings found her menstruating since 18-3-2010. She also found that the examinee's hymen was healed old and vagina admitted two fingers tightly. The Lady -Doctor also found some laceration and abrasions on the body of the victim. She obtained vaginal swabs for detection of semen grouping, semen analysis and for DNA test. The report of the Chemical Examiner, Punjab, Lahore indicated that the swabs were not stained with semen, however, were stained with- blood; the complainant/victim refused to cooperate in connection with DNA test and submitted written application in this regard on 5-4-2010 to the SHO.

 

4. The Investigating Officer conducted investigation of this case by associating both the parties with the process of investigation and recorded his findings qua the innocence of the petitioner vide case Diary No.15-4-2010, consequently a report under section 173, Cr.P.C. was prepared by the Investigating Officer with the name of the petitioner in column No.2 of the Challan.

 

5. It has been contended by the learned counsel for the petitioner that a false case has been got lodged by the complainant under a conspiracy so as to cause humiliation and disrespect to the petitioner; that the version of the complainant had not been supported by any witnesses at all; that the medical evidence negates the version of the complainant; that the complainant/victim stated herself to be an unmarried girl who had been allegedly subjected to Zina Bil Jabbar by the petitioner and his co-accused but her medical examination, just after three days of the alleged occurrence, had unfurled falsity of her version; that the petitioner had been found innocent during the course of investigation and a report under section 173, Cr.P.C. had been submitted by the Investigating Officer with name of the petitioner in its column No.2; that there is a delay of three days in lodgment of the FIR., for which no explanation had been offered by the complainant; that the petitioner is entitled for grant of bail as his case falls within the ambit of further inquiry.

 

6. On the other hand, learned Additional Prosecutor-General, assisted by learned counsel for the complainant has controverted the arguments of the other side with the contention that the version of the complainant/victim did not require any corroboration as no girl would ever like to put her honour and dignity at stake for falsely implicating a person in a criminal case; that the victim's career and future had been ruined by the devilish act of the petitioner as she was a student .of 3rd year and was moving towards a bright and secure future; that the act of the accused petitioner had not only ruined the victim but also her entire family, had been stigmatized due to ravishing of their girl; that ipse dixit of the opinion of the police .is not binding upon the court; that the offence committed by the petitioner falls within the prohibitory clause of section 497, Cr.P.C, so he was not entitled for release on bail.

 

7. Arguments heard. Record perused.

 

8. The complainant lady was a student of third year when forcibly picked up and abducted at gunpoint by the accused-petitioner and others while going to her college, where, she was a student of 3rd year. She was rendered helpless by applying an adhesive tape on her mouth and also tied her hands and feet. She was driven to a DERA situated at a deserted place where the petitioner and her co-accused subjected her to act of coitus against her will. She succeeded in fleeing away from the clutches of the petitioner and her co-accused when they had left for city Kamalia to fetch food. The medical evidence does not negate the version of the petitioner in any manner. As her hymen was not found intact though, observed to be healed old. The non detection of spermatozoa on the viginal swabs may be due to the fact that she was found menstruating at the time of her medical examination by the Medical Officer.

 

9. So far as the definition of rape/zina is concerned, the offence of Zina shall be deemed to have been committed if the penetration has taken place, without entering into the question as to how long it went.

 

10. The complainant was a student of 3rd year in Government Degree College for Women Kamalia and had set off for her college on the day of occurrence, as usual, absolutely, unaware of the circumstantial terror, which fell upon her when the petitioner and his co-accused abducted her for satisfaction of their lust. She, after having been ravished by the sex-mongers, managed to rejoin her family with a story of painful and frightful details. She being a student of degree classes was bound for a bright and purposeful future but for the satanic act of the petitioner and his co-accused her dreams had been shattered. Why would she cook up a story to falsely implicate the petitioner when she or her family had no grudge or bias against him.

 

11. The solitary statement of the victim/prosecutrix can be relied upon for the purpose of prosecution of an accused charged with, identical allegation. The required degree of corroboration to the statement of the complainant-victim is available in this case in the form of the MLR of the victim which has been discussed earlier. The learned counsel for the petitioner failed to answer to the query of this court as to why, a virgin educated girl shall put her honour and dignity as well as that of her family at stake for implicating someone in a criminal case. The sanctity of the report of Chemical Examiner shall be assessed during the course of the trial. I find that the opinion of the Investigating Officer is sketchy, in nature. The offence with which the petitioner is charged falls within the mischief of prohibitory clause of section 497, Cr.P.C.

 

12. For what has been discussed above, I am not inclined to admit the petitioner to post arrest bail. The instant petition stands dismissed.

 

N.H.Q. /M-338/L                                                                                            Bail refused.

 

2010 Y L R 2019 [Karachi]

 Before Salman Ansari, J

 

ARIF ALI ANSARI and another---Applicants

 

Versus

 

THE STATE---Respondent

 

Criminal Bail Application No. 1471 of 2008, decided on 11th March, 2009.

 

Criminal Procedure Code (V of 1898)---

 

----S.497---Penal Code (XLV of 1860), Ss.365-B & 376(2)---Abduction and rape---Bail, refusal of---Operative part of D.N.A. test report issued by the Incharge D.N.A. Forensic Service, was that D.N.A. profiles of accused persons matched 100% with D.N.A. profiled obtained from the stained clothes of victim female---Report confirmed the involvement of both accused persons in the crime and also gang rape of the victim---Said report having been sent by the Institute of Biomedical and Genetic Engineering, Government of Pakistan, any inadvertent mistake in the name would not make said report doubtful, when the correct crime number and other details of the case were given in the report---Nature of crime with respect to identification Parade would be looked into during the trial; as other corroborative evidence and the evidence of witnesses, had found accused to be present prior to the incident near place of incident--- Deeper appreciation of evidence was not required at bail stage so as to prejudice the trial of the case---Bail application was dismissed, in circumstances. 

 

Azhar Amin @ Naji @ Mota v. The State 2008 PCr.LJ 824; Syed Khalid Mahmood v. the State 1994 PCr.LJ 757; Jamil Masih v. The State 1994 PCr.LJ. 765; Lejzor Teper v. The Queen PLD 1952 Privy Council 119; Peradeniya Service Bus Company Limited v. Sri Lanka Omnibus Company Limited; PLD 1952 Privy Council 128; Talib Hussain v. The State 1995 SCMR 1538 and Muhammad Ejaz v. The State 2008 YLR 690 ref.

 

Muhammad Ashraf Kazi for Applicants.

 

Ms. Akhtar Rehana, Addl. Prosecutor General for the State.

 

 

ORDER

 

SALMAN ANSARI, J.---This bail application has been moved on behalf of the applicants Arif Ali Ansari son of Anwar Ali Ansari and Raja Muhammad Arif son of Raja Afzal Khan who have been booked in F.I.R. No.50 of 2008 under section 365-B, P.P.C. lodged at Police Station Brigade Karachi. The charge was framed under sections 365-B/376 (2) P.P.C.

 

2. Brief facts according to the F.I.R. are that on 16-3-2008 at about 1940 one Bashir Ahmed son of Khuda Bux registered above F.I.R. at Police Station Brigade Karachi complaining that they had come from Punjab to visit the Shrine of Qalandar Lal Shahbaz and thereafter on 15-3-2008 they had come to Karachi to the Mousoleum of Quaid-e-Azam, they parked their vehicles outside the Mousoleum, his son-in-law along with his daughter Mst. Razia Kubra and 12/13 women went to the Mausoleum, bought tickets while on instructions of husband of Razia Kubra she stayed at that place so that he could bring rest of the party to go inside the museum together. When he came after 15 minutes his son-in-law found Razia Kubra missing. He searched and doubted that his daughter had been kidnapped/abducted by the museum staff or other staff of the Mousoleum of Quaid-e-Azam with intention to commit Zina. On 17-3-2008 at about 3-30 a.m. the rangers on patrol found Mst. Razia Kubra standing outside the grill of the Mazar. On enquiry she disclosed her name Razia Kubra. Meanwhile at 4-30 a.m. A.S.-I. Asghar Chohan on duty at Brigade Police Station came at the spot and the gill was taken to the Police Station. In her 161, Cr.P.C. statement girl narrated that she was standing, alone, two persons approached her and forcibly took her down into room where three other boys came and they all after intoxicating her committed zina with her, when she came to her senses she found herself at Police Station. A case under section 365-B of the Women (Criminal Law Amendment) Act, 2006 lodged at Police Station Brigade Karachi against accused persons and subsequently both applicants/ accused were arrested. The girl was medically examined on 17-3-2008 and Challan was submitted under section 365-B/376/34, P.P.C. against accused persons. Learned 5th Additional Sessions Judge Karachi East rejected the bail application of both the applicants/accused vide order dated 30-9-2008, hence this bail application.

 

3. It is argued by the learned counsel for applicants/accused that applicant No.1 is employee as Stenographer BPS-12 in the office of Resident Engineer, Quaid-e-Azam Management Board behind Mausoleum and the applicant No.2 is an Accountant in BPS-16 QMMB office at the same place, both are respected employees and have been falsely implicated in this case. They have not been identified in the identification parade and it was only on the basis of DNA Test conducted that they have been implicated in this case which test has not been properly conducted as applicant No.1 is shown son of Sarwar in the report while his father's name is Anwar Ali Ansari. There is no other evidence against both the applicant. Learned counsel has meanwhile given long narration in the bail application about history and methods of conducting DNA Test but he has not explained the same in so many words to assist the Court for considering and to appreciate his point of view that DNA Test was not properly conducted. Learned counsel for applicant has argued that in view of insufficient evidence the case of applicants requires further inquiry as made out. In support of his contention learned counsel for applicant has relied on Azhar Amin @ Naji @ Mota v. The State 2008 PCr.LJ 824; Syed Khalid Mahmood v. The State 1994 PCr.LJ 757; Jamil Ma'sih v. The State 1994 PCr.LJ. 765; Lejzor Teper v. The Queen PLD 1952 Privy Council 119; Peradeniya Service Bus Company Limited v. Sri Lanka Omnibus Company Limited; PLD 1952 Privy Council 128; Talib Hussain v. The State 1995 S.CMR 1538 and Muhammad Ejaz v. The State 2008 YLR 690.

 

4. Learned Additional .Prosecutor-General appearing for the State has vehemently opposed the bail application. She has contended that result of DNA test was received positive of both the applicants/accused then they were arrested and implicated, in the present case the punishment is provided as, death or imprisonment for life. The innocent girl Mst. Razia Kubra had come to visit the Mausoleum but she had been subjected to such a brutal act, at this stage both the applicants are not entitled to any concession whatsoever, hence the bail application of applicants/accused may be rejected.

 

5. Having heard learned counsel for application, learned Additional Prosecutor General appearing for State and perusal the case-law cited, in this matter the DNA test report dated 24-4-2008 of IBGE, Islamabad issued by the Incharge DNA Forensic Services IBGE Islamabad, the operative part of the report is as under:--

 

"DNA profiles of suspect, Mr.Asif Ansari son of Sarwar and Mr. Raja Muhammad Arif son of Mr. Raja Muhammad Afzal, 100% matched with the DNA profile obtained from the DNA isolated from the stained cloths of victim Ms. Razia Kubra. It confirms the involvement of both the suspects in the crime and also gang rape of Ms. Razia Kubra."

 

6. This report was sent by the Institute of Biomedical and Genetic Engineering, Government of Pakistan Islamabad in F.I.R. No.50 of 2008 which is the present case, hence any inadvertent mistake in the name would not make the report in my opinion doubtful when the correct crime number and any other details of the case are given in the report. However, nature of crime with respect to identification parade would be looked into during the trial as other corroborative evidence and the evidence of witnesses who had found the applicants/accused to be present prior to the incident near place of incident. Regarding case 2008 SD 400 Azhar Amin @ Naji @ Mota v. The State where two DNA reports which were inconsistent and contradictory to each other, such case is not in the present matter. Syed Khalid Mahmood v. The State 1994 PCr.LJ 757 wherein it has been held that circumstantial evidence is evidence of facts from which the facts in issue may be inferred as a natural or probable conclusion. In Lejzor Teper v. The Queen PLD 1952 Privy Council 119 is on its response of hearsay evidence. In my opinion at this stage deeper appreciation of evidence is not required so as to prejudice the trial of the case. On the same lines with due deference to the case cited being Muhammad Ejaz v. The State 2008 YLR 690 where the medical report did not support the allegation of commission of forcible Zina, these findings would not be applicable to the present case where the statement of the victim that she was intoxicated and put under fear on show of arms and raped. Therefore, in view of the above discussion and with due respects to the case cited which in my opinion would not be applicable under the circumstances o the facts of the case as discussed above, hence finding no merits the present bail application is dismissed accordingly.

 

H.B.T./A-41/K                                                                                                Bail refused.