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    365-B and 376-PPC 2021 MLD 493

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    Shehla Seemab
    The petitioner sought bail after being arrested for charges of kidnapping and rape. The trial court had previously denied bail. In its judgment, the Peshawar High Court: 1) Noted inconsistencies in the case against the petitioner, including that the complainant did not initially name the petitioner as involved and medical examination found no signs of recent intercourse. 2) Ruled that the sole statement of the alleged victim was not enough evidence to connect the petitioner to the crime, and DNA/FSL reports were negative. 3) Determined the case met the criteria for granting bail under Section 497 of the Criminal Procedure Code and granted bail with sureties to be furnished.

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    © All Rights Reserved
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    365-B and 376-PPC 2021 MLD 493

    Uploaded by

    Shehla Seemab
    72 views4 pages
    The petitioner sought bail after being arrested for charges of kidnapping and rape. The trial court had previously denied bail. In its judgment, the Peshawar High Court: 1) Noted inconsistencies in the case against the petitioner, including that the complainant did not initially name the petitioner as involved and medical examination found no signs of recent intercourse. 2) Ruled that the sole statement of the alleged victim was not enough evidence to connect the petitioner to the crime, and DNA/FSL reports were negative. 3) Determined the case met the criteria for granting bail under Section 497 of the Criminal Procedure Code and granted bail with sureties to be furnished.

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    365-B and 376-PPC 2021 MLD 493

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    The petitioner sought bail after being arrested for charges of kidnapping and rape. The trial court had previously denied bail. In its judgment, the Peshawar High Court: 1) Noted inconsistencies in the case against the petitioner, including that the complainant did not initially name the petitioner as involved and medical examination found no signs of recent intercourse. 2) Ruled that the sole statement of the alleged victim was not enough evidence to connect the petitioner to the crime, and DNA/FSL reports were negative. 3) Determined the case met the criteria for granting bail under Section 497 of the Criminal Procedure Code and granted bail with sureties to be furnished.

    Copyright:

    © All Rights Reserved
    Download as PDF, TXT or read online from Scribd
    Download as pdf or txt
    72 views4 pages

    365-B and 376-PPC 2021 MLD 493

    Uploaded by

    Shehla Seemab
    The petitioner sought bail after being arrested for charges of kidnapping and rape. The trial court had previously denied bail. In its judgment, the Peshawar High Court: 1) Noted inconsistencies in the case against the petitioner, including that the complainant did not initially name the petitioner as involved and medical examination found no signs of recent intercourse. 2) Ruled that the sole statement of the alleged victim was not enough evidence to connect the petitioner to the crime, and DNA/FSL reports were negative. 3) Determined the case met the criteria for granting bail under Section 497 of the Criminal Procedure Code and granted bail with sureties to be furnished.

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    KASHIF---Petitioner Versus The STATE and another---Respondents

    • Citation: 2021 MLD 493


    • Result: Bail Granted
    • Court: Peshawar High Court
    • Date of Decision: 31.1.2020.
    • Judge(s): Ahmad Ali, J
    • Case Number: Criminal Bail Application No.11-P of 2020
    • JUDGMENT
    • JUDGMENT
    AHMAD ALI, J.---Through the instant petition, the petitioner (Kashif),
    seeks his post arrest bail in case FIR No.752 dated 04.12.2019 under
    sections 365-B/376-P.P.C, P.S. SI Abdul Hameed Shaheed Shabqadar
    (District Charsadda). Same relief was however, declined to him by the
    learned Trial Court, vide order dated 20.12.2019.
    2. Brief facts of the case are that, initially, the complainant, vide DD
    No. 17 dated 26.11.2019, reported to the local police that on 25.11.219 at
    about 1:00 hrs his daughter namely Zuhra (aged about 17/18 years) went
    out of the house, on her return to house, she was inquired who told that
    she had gone to the house of one Kashif; On 26.11.2019, she again left her
    house and took away with her one tola gold. She was searched but in vain.
    Upon her recovery, the complainant and victim recorded their statements
    under section 164, Cr.P.C., on 04.12.2019, wherein they charged the
    present accused for inducing her and committing zina with her.
    Accordingly, FIR ibid was registered against the accused, hence the instant
    petition for bail.
    3. Arguments of learned counsel for the parties heard and record gone
    through with their able assistance.
    4. Perusal of record reveals that the victim twice left her house on
    25th and 26th November, 2019, but the present accused-petitioner was
    not charged by the complainant in his initial report rather he was charged
    by the abductee vide her statement recorded under section 164, Cr.P.C.,
    on 04.02.2019, when she was brought from Dar-ul-Aman at Punjab.
    Medical examination of the victim was also conducted on the same day,
    wherein no sign of recent intercourse was found on the private parts of the
    body of the victim.
    5. Except the solitary statement of abductee, no other incriminating
    evidence is available on record to prima facie connect the present accused-
    petitioner with the commission of crime. Likewise, no other eyewitness has
    been cited so as to support her version or the version of complainant
    coupled with the fact that FSL report regarding the swab is negative.
    6. The main ingredient of section 365-B is also missing in the instant
    case because it has not been mentioned by the abductee that through what
    means she was abducted. Moreso, the accused has not confessed his guilt
    yet.
    7. In view of the above facts and circumstances, case of the petitioner
    squarely falls within the ambit of subsection (2) of Section 497, Cr.P.C.
    calling for further inquiry in the matter; and in such like cases grant of
    bail is to be considered as a matter of right and not as a matter of grace or
    concession.
    8. Besides provision of 164-B, Cr.P.C, provides as under:-
    [164-B DNA Test.-(1) Where an offence under section 376, section
    377 or section 377-B of the Pakistan Penal Code, 1860 (Act SLV of
    1860) is committed or attempted to have been committed or is
    alleged to have been committed, Deoxyribo Nucleic Acid (DNA)
    samples, where practicable, shall be collected from the victim with
    his or her consent or with the consent of his or her natural or legal
    guardian and the accused during the medical examinations
    conducted under section 164-A within optimal time period of
    receiving information relating to commission of such offence.
    (2) The DNA samples collected under subsection (1) shall at the
    earliest be sent for investigation to a forensic laboratory where these
    shall be properly examined and preserved:
    Provided that confidentiality of such examination shall at all time
    be observed.]
    Apparently, no compliance with the above provision of law has been made
    because no samples for DNA tests have been obtained either from the
    accused-petitioner or victim despite the fact that the word "shall" is used
    in the said provision, making its applicability mandatory. The prosecution
    must keep in mind this aspect while dealing with such like offences in the
    best interest of the accused as well as the victim. In view of the negative
    FSL report, nothing left with the prosecution except to comply with the
    above provision in support of its version.
    9. Moreover, investigation in the case is complete and accused-
    petitioner is no more required to the prosecution for the very purpose. He
    is behind the bars since his arrest, therefore, his further incarceration in
    jail will serve no useful purpose.
    10. Apart from the above, it has been held time and again by the august
    Supreme Court that bail does not mean acquittal of accused but only
    change of custody from Government agencies to the sureties, who on
    furnishing bonds take responsibility to produce the accused whenever and
    wherever required to be produced. Reliance could be placed on case
    reported in 2008 SCMR 807 "Haji Muhammad Nazir v. State".
    11. Before parting with this order, this court finds it necessary to
    mention that all the observations recorded above are tentative assessment
    just for the disposal of bail petition and not intended to influence the mind
    of trial Court, which is free to appraise the evidence strictly in accordance
    with law and merits of the case.
    12. For what has been discussed above and on tentative assessment of
    material available on record, a case arguable for the grant of bail is made
    out, consequently, this bail petition is allowed and accused-petitioner,
    named above, is admitted to bail provided he furnishes bail bonds in the
    sum of Rs.200,000/- with two sureties each in the like amount to the
    satisfaction of learned Illaqa/Duty Judicial Magistrate, who shall ensure
    that the sureties are local, reliable and men of means.
    13. Above are the reasons of short order of even date.

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