PLJ 2024 Cr.C. (Note) 37[Lahore High Court, Multan Bench]Present: Sardar Muhammad Sarfraz, Dogar, J.SAJID ALI--PetitionerversusSTATE and another--RespondentsCrl. Misc. No. 7414/B of 2023, decided on 15.11.2023.
Criminal Procedure Code, 1898 (V of 1898)--
----S. 497--Pakistan Penal Code, (XLV of 1860), Ss. 376 & 338-A--Offence deleted by investigating officer--Opinion of medical officer--Further inquiry--Post arrest bail--Grant of--Offence falling u/S. 338-A, PPC, has been deleted being not made out by the investigating officer--At the time of initial examination of the victim, the women Medical Officer mentioned “Exact cause of injury is unknown” and the injury was kept under observation--Investigating Officer sought simplication and explanation of final opinion of MLC of the victim from the women medical officer who gave the explanation as under--“No fresh or old injury found on anal/perineal area. Therefore, no opinion regarding commission of act of sodomy (anal sex) can be given in this case”--Case outrightly puts the allegations contained in the FIR and levelled by the complainant and the victim in the ambit of further inquiry--The petitioner was arrested and his physical custody is no more required--There is no substantial progress in the conclusion of the trial--This petition is hereby accepted and the petitioner is admitted to post arrest bail. [Para 4, 5, 6 & 7] A, B, C, D, E, F
PLD 2009 Lahore 14; 2014 SCMR 12; 2019 SCMR 1914 ref.
Criminal Procedure Code, 1898 (V of 1898)--
----S. 497--Benefit of doubt--Benefit of doubt can be even extended at bail stage. [Para ] E
2022 SCMR 1271; 2022 SCMR 1555; 2023 SCMR 364 ref.
Syed Imran Abbas Kazmi, Advocate for Petitioner.
Mr. Hassan Mehmood Khan Tareen, Deputy Prosecutor General for State.
Mr. Akbar Saeed Ch, Advocate for Complainant.
Date of hearing: 15.11.2023.
Order
Through the instant petition under Section 497, Cr.P.C., the petitioner is seeking post-arrest bail in case FIR No. 771/23 dated 06.09.2023, registered for the offences under Sections 376, 338-A, PPC) with the Police Station Dera Raheem, District 23 Sahiwal.
2. The allegation against the petitioner as per FIR is that the petitioner not only had been committing offence of unnatural lust with his wife but also he alongwith his “Bhabhi” caused forcible miscarriage.
3. Arguments heard. Record perused.
4. At the outset, it is noted that the offence falling under Sections 338-A, PPC, has been deleted being not made out by the investigating Officer vide case diary No. 11 dated 23.09.2023. So far as the allegations of commission of offence of unnatural lust is concerned, it has been alleged by the complainant and the victim that the said act of the petitioner caused rectico vaginal fistula i.e. opening of interior wall of rectum and posterior wall of vagina resulting into severe distress and pain to the victim. In this regard, when the opinion of medical expert is recoursed, it is found that at the time of initial examination of the victim, the Women Medical Officer mentioned in the “Description of injury” that Exact cause of injury is unknown” and the injury was kept under observation (KUO) for Surgeon and Radiologist expert opinion. However, vide final report of injuries, it has been opined as under:
“Surgical opinion withdrawn due to clear cut findings in on fistula gram recto vaginal/uterine formation noted with free flow of contrast from vaginal after rectal injection of contrast given According to medical literature sodomy is unlikely a cause of recto vaginal/uterine fistula”.
Furthermore, the Investigating Officer sought simplication and explanation of final opinion of MLC of the victim from the women medical officer who gave the explanation as under:
1. “In view of findings of MLC No. 61/2023 no fresh or old injury found on anal/perineal area. Therefore, no opinion regarding commission of act of sodomy (anal sex) can be given in this case
2. The formation of recto vaginal fistula is not due to sodomy (anal sex).
3. The other causes of recto vaginal fistula cannot be ruled out.
6. This aspect of case outrightly puts the allegations contained in the FIR and levelled by the complainant and the victim in the ambit of further inquiry. It is worth mentioning here that during the course of investigation, the complainant party did not confronted with the petitioner which further shows their mala-fide on the part of complainant and victim. It is settled principle of law that benefit of doubt can be even extended at bail stage, Reliance is placed on “Muhammad Ejaz vs. The State” (2022 SCMR 1271), “Muhammad Arshad vs. The State” (2022 SCMR 1555) & “Fahad Hussain vs. The State” (2023 SCMR 364).
7. The petitioner was arrested in this case on 07.09.2023 and his physical custody is no more required to the police for further investigation. There is no substantial progress in the conclusion of the trial and, thus, his further incarceration for an indefinite period would serve no useful purpose for the prosecution. Mere heinousness of offence could not impede the release of accused on bail if otherwise his guilt call for further probe, nor bail could be withheld as a strategy for punishment. Reliance can be placed on case laws “Imtiaz Ahmed vs. The State” (PLD 2009 Lahore 14)”, “Syed Khalid Hussain Shah vs. The State and another” (2014 SCMR 12), and “Husnain Mustafa vs. The State” (2019 SCMR 1914).
8. Keeping in view the above noted peculiar facts and circumstances of instant case and without discussing the other merits of the case lest it should prejudice the case of either side, this petition is hereby accepted and the petitioner is admitted to post arrest bail subject to furnishing his bail bonds in the sum of Rs. 1,00,000/-with one surety in the like amount to the satisfaction of the learned trial Court. It is, however, clarified that the observations made hereinabove are tentative in nature, and strictly confined to the disposal of instant bail petition.
(K.Q.B.) Bail accepted
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